ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-RD19563
DATE: 20105/10/29
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BDN
Accused
Chantal Lefebvre, for the Crown
Dominic Lamb, for the Accused
HEARD: September 28, 29, 30, 2015
October 1, 2, and 5, 2015
Notice: The Court has made an order under section 486 of the Criminal Code of canada prohibiting the publication of evidence that could identify the complainant in this proceeding.
REASONS FOR JUDGMENT
C.T. Hackland J.
Overview
[1] The accused is charged on a five count indictment with sexual assault, unlawful confinement, assault with several weapons (a belt, scissors, and an electric razor) and threatening bodily harm. These charges allege acts perpetrated against his former spouse, in their home, on the evening of December 26, 2013. The threatening charge was dismissed for lack of evidence, with the concurrence of the Crown.
Factual Background
[2] There were only two witnesses in this trial, the complainant and the accused. As of late 2013, this couple had been married for 15 years and had three children living at home with them. They both have university degrees and are of South Asian background. The accused speaks fluent English but the complainant’s English is limited and she testified through a translator. This created some challenges when she addressed some of the intimate matters surrounding the alleged sexual assault.
[3] At the time of the incident, the accused and the complainant operated a retail store selling imported goods from Asia. Their marriage was in serious difficulty. The complainant had decided that she wanted a divorce and had told the accused this. He was opposed to this because, as he explained to her, this would be bad for their children and would make the continued operation of their store very difficult. She felt they could manage although she acknowledged the difficulties. At the time of the incident, the parties continued to live together in one house, with their children, however, they maintained separate bedrooms and had not had sex for several months. The complainant said that she considered that they were separated. She was in the process of trying to finalize a separation agreement based on intermittent negotiations with the accused. Discussion of the terms of a separation agreement often occurred during breaks as they both worked at their retail store.
[4] The Court heard evidence about the issues that divided this couple. From the complainant’s perspective, she had become unhappy with their lifestyle where she spent long hours at the store and carried the bulk of the parenting obligations. She was exhausted. She felt the accused did not do his fair share of the work, particularly at home where he was slovenly and there were parenting concerns. She disapproved of the way she perceived he interacted with female employees at the store and with a female guide/translator on his last business trip. She told her husband that she had feelings for a former business associate. Most seriously, she said she had come to distrust the accused concerning his interactions with other women and felt his dismissive attitude about these issues was disrespectful to her. She said that she had lost respect for her husband.
[5] For his part, the accused viewed the complainant’s concerns about his interaction with female employees as completely unjustified. He acknowledged that he was slovenly around the home and let the children stay up too late, but noted that he was “working on” these problems. He admitted that his wife was working much too hard and neither of them had enough quality time to spend together. The complainant’s reference to having feelings for their former business associate made him feel “betrayed”.
[6] Two of the complainant’s sisters had become involved in trying to save this marriage, with the tacit approval of both parties. Their solution was for the complainant to find more time to relax and interact with the accused on a personal level.
[7] On the Court’s view of the evidence, by the time the accused returned from a three week buying trip to China on November 24, 2013, the complainant had decided the marriage was over and she was clear about that in her discussions and subsequent negotiations with the accused. She told the accused she wanted a divorce and she set about putting together a draft separation agreement, with his input. She also told the accused’s family that she wanted to end the marriage.
[8] During this period on one occasion while at home, the accused wanted to have sex with the complainant. He took her hand to lead her to the bedroom and she abruptly pulled it away. He respected her wishes on that occasion. As of December 26, 2013, the parties had not been intimate for a period of at least three months. On Christmas Eve and Christmas Day, the accused avoided the complainant by declining to attend a Christmas Eve gathering with her and the children and their doing repair work in the store on Christmas Day.
[9] The essential relevance of this background, in my view, was that as of the date of this incident, both parties understood that their marriage was, for all intends and purposes, over and the complainant wanted a divorce and to have the draft separation agreement signed off. The accused was well aware of all of this. In other words, there was no reconciliation scenario underway.
The Incident
[10] On December 26, 2013, Boxing Day, the complainant worked in the store and the accused stayed home with the children. He was able to get his mother to look after the children at her house overnight so that when the complainant arrived home from work, she was alone with the accused. She was unaware that the children would not be there when she arrived. After her arrival, she did some cooking in the kitchen downstairs and then chatted on the telephone with a friend. After that, the accused came downstairs and engaged the complainant in what I find to be a significant conversation.
[11] The description of this conversation was similar in the testimony of each party. The subject was the future of their marriage. The complainant maintained her position that she wanted a divorce and she wanted him to sign the draft separation agreement, a copy of which she had with her. There was also discussion of the many issues that divided them, which were mentioned previously. The accused acknowledged that some of the discussion was quite heated. He pointed out the problems that separation would create for the children, and particularly for the business. His solution was to follow his sister-in-law’s advice and spend more quality time together. I find this difficult conversation did not result in any resolution of matters.
[12] The accused testified that he felt, as an end result of the conversation, that the complainant was agreeable to “continue to work on saving the marriage”. He testified that his thinking was “make love make peace” and he felt that having sex was part of working on their marriage. He admitted he did not discuss having sex with the complainant. On his own evidence, the accused never sought the complainant’s agreement to have sex. I am satisfied that the Crown has proven beyond a reasonable doubt that the complainant never agreed to engage in sexual relations with the accused on that evening.
[13] I understand the accused’s position to be that he had a reasonable and honestly held belief that the complainant was consenting to engage in sexual activity with him. Such a defence is limited by s.273.2 of the Criminal Code, R.S.C., 1985, c. C-46 which 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) …
(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.
[14] The accused testified that when the complainant went upstairs, he believed that she was going to shower to “prepare for sex”, something she normally did before engaging in intimate relations. The accused testified that this, plus his belief that she was agreeable to working on saving their marriage, was the basis for his belief that she was consenting to have sex with him. His subsequent actions of tying her hands and feet with rope, shaving her pubic hair and striking her three times with a leather belt were typical of sex play they engaged in from time to time, he said.
[15] The suggestion that the complainant went upstairs to shower, as a preparation for sexual relations, was not put to the complainant in cross-examination, in what I view as a clear breach of the rule in Brown v. Dunn. I draw a negative inference from that, and in any event, accept the complainant’s version that she went upstairs in response to the accused’s request that she come up to look at some year-end financial figures for their business that he had on his computer in the computer room. The interaction between the parties took place in the computer room following the viewing of this financial data. The accused acknowledged that he asked the complainant to view the financial data in the upstairs computer room.
[16] The accused testified that when the complainant first went upstairs and was in the washroom, he quickly fetched his bondage paraphernalia which he used from time to time when the couple had sexual intercourse. This consisted of some rope ties, and a leather belt, as well as a circular metal bracket that screwed onto the headboard of the bed. He explained that the bracket was used to secure the rope he planned to tie around the complainant’s wrists. He deposited the rope ties and belt inside some drawers in the computer room out of sight.
[17] The accused and the complainant both testified that they spent some time looking at the year-end financial data on the computer. They also agree there was no discussion of having sex. There was a bed in the computer room in which the accused sometimes slept. After reviewing the financial data, the accused testified that they moved over to the bed and spontaneously had sex in a way that was quite often done by this couple i.e. with some role playing and bondage and some spanking. On the complainant’s version, she was pushed onto the bed, tied up, whipped with a belt and subjected to forced intercourse.
[18] I found the evidence of the complainant to be very credible. It was sensible and coherent, responsive to the questions asked and not exaggerated. It was supported by the police photographs of the large discoloured welts on her buttock and ligature marks on her wrist. In contrast, the accused, when discussing the sexual interaction, was vague and often non-responsive to questions. He often had to be pressed to answer the questions and questions had to be repeated. He had the habit of saying what he “would do” to the complainant in apparent reference to the parties past sexual encounters and he had to be refocused to answer questions about the incident in question. He seemed to be making up many of his answers as he went along. He provided long rambling and detailed answers to questions about matters other than the sexual encounter in question.
[19] Both parties were questioned about the sexual encounter in great detail. On some important aspects, their evidence was the same. For example, the sexual encounter occurred on the bed in the computer room after they had spent 15 minutes or so viewing financial data on the computer. They agree there was no discussion about having sex, either before they went upstairs or after they finished looking at the financial data on the computer.
[20] The complainant testified that she was pushed onto the bed and the accused used his weight to confine her hands and legs while he tied her up. She remained tied up for the entire incident. She identified the ligature marks on her arms depicted in the police photos. On the other hand, the accused testified that the sex was spontaneous and that he did not tie her up until mid-way through the encounter, after he had performed oral sex on her and after he had left the room briefly to fetch the scissors and electric razor to shave her pubic hair. He says she cooperated with all of this. The complainant testified that her involvement was forced while she was bound up by ropes on her hands and feet and in spite of her telling him to stop and threatening to call the police.
[21] The complainant testified very convincingly that she did not agree to be tied up or to have her pubic hair shaved or to be whipped with a leather belt. She agrees that prior to their marital problems they engaged in bondage and role playing on occasion but this was his preference and occurred at his option only after they had engaged in more conventional sex and only after she had been satisfied. On those occasions she agreed to his request to tie her up and if the ties were too tight she would feel free to speak up. She acknowledged that she had allowed him to shave her pubic hair during previous encounters.
[22] The accused admitted that he never asked the complainant if he could whip her with a leather belt. He conceded that on prior occasions he would spank her while she lay on top of him with a light hand slap. He acknowledged that whipping her from a standing position as he did on this occasion involved much more force. He said he did not intend to cause “permanent injury” but merely sexual arousal. He agrees with the complainant’s evidence that she was not being sexually stimulated by anything he was doing on this occasion and that she told him so.
[23] Both parties testified that the complainant asked the accused not to cut off her blouse and bra and he cooperated by partially untying her so she could remove these items of clothing. She asked him to use a condom, which he declined to do. Both parties agree that the complainant was very upset when he ejaculated inside her without using a condom. The accused expressed the opinion that the complainant called the police because he ejaculated inside her.
[24] When pressed as to his basis for thinking the complainant was agreeing to have sex with him, when he never expressly asked, he pointed to the fact that tying her up and bondage/role playing is what they often did when they had sex. He also said he believed from the complainant’s physical reactions that she was responding to his sexual advances. At the same time, he acknowledged that she was not becoming stimulated and said that was why he whipped her with a belt and then penetrated her i.e. to increase her enjoyment.
[25] I have no hesitation in finding on the evidence before the court, as a whole, that the complainant did not consent to any aspect of the sexual encounter with the accused. Of particular importance is the fact that the accused conceded in his testimony that he never sought or received her consent. As described previously, this attack followed a growing conflict between this couple who were living separate and apart under the same roof while they worked out a separation agreement. On the evening of December 26, they had just had a tense and heated discussion of their differences. She was lured upstairs at the accused’s request to look at financial data on the computer. As she went upstairs and was in the bathroom, he secretly gathered the bondage paraphernalia and hid it in the drawers in the computer room. On the accused’s own evidence, he never asked the complainant if he could tie her up or whip her with his leather belt. He acknowledged whipping her with considerable force from a standing position. The police photographs of the welts on her buttocks speak for themselves.
[26] I am of the view that there is no air of reality to the defence that the accused had a reasonable but mistaken belief that the complainant was consenting to being tied up and whipped or indeed to any aspect of this encounter. The accused admits he never asked her to agree to have sex or to be tied up and whipped. The accused’s assertion that he interpreted her agreement to work on saving the marriage as a “make peace, make love” proposition is simply not credible. Moreover, the fact that bondage and role playing was sometimes part of their prior sex life does not make it reasonable for him to believe she was open to being tied up and whipped on this occasion. I am satisfied beyond a reasonable doubt that the accused had no belief, reasonable or otherwise, that the complainant was consenting to this attack. The fact that he may have been trying to “rekindle the romance”, as suggested in argument, is both speculative and irrelevant.
[27] The defence properly conceded that in the context of the charges before the court the leather belt, the scissors and the electric razor are weapons.
[28] The defence submitted that certain actions of the complainant following the accused’s arrest compromised her credibility. Firstly, within a short period after the accused’s arrest, she wrote a letter to a former business associate asking if he would like to get to know her and possibly go on a business trip to Asia with her. Secondly, she asked the police to drop the charges against the accused. This course of events placed the complainant in a position where she was alone, lonely and in a difficult position managing her children and business without the accused’s involvement. I decline to draw any negative inferences from her actions as described.
[29] In conclusion, I am satisfied beyond a reasonable doubt that the accused committed the offences charged on counts 1, 2, 3, and 4 on the indictment and there will be a finding of guilty on each.
Justice Charles T. Hackland
Released Orally: October 29, 2015
COURT FILE NO.: 14-RD19563
DATE: 20105/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
BDN
Accused
Notice: The Court has made an order under section 486 of the Criminal Code of canada prohibiting the publication of evidence that could identify the complainant in this proceeding.
REASONS FOR JUDGMENT
C.T. Hackland J.
Released Orally: October 29, 2015