ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-13-593-00
Date: 20151210
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. M. Morris, for the Crown
- and -
S.M.
Mr. S. O’Neill, for the defence
HEARD: December 8, 2015, at Brampton
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
F. Dawson J.
[1] On December 8, 2015, I convicted S.M. of sexually assaulting his wife F.M. during a 19 day period ending December 31, 2011. I indicated that written reasons would follow the very brief oral reasons I provided in court.
[2] S.M. and F.M. had been married for approximately 20 years at the time of the assault. F.M. could not recall the exact date of the assault. She did not contact the police until about 10 months later. However, she was certain it occurred within the time frame of the indictment because it occurred when her husband was home from the hospital on a weekend pass. I inferred that he was at that time an involuntary patient. I have since learned that inference was correct.
[3] F.M. said that she was in the kitchen of the home when she heard the accused screaming. He was upstairs in the master bedroom having a nap. She went upstairs and opened the bedroom door. Her husband was laying on the bed and said, “Oh God – I want to see her again.” She said he also said, “Oh God – let me see her one more time.”
[4] F.M. did not know whether her husband was still asleep. She called his name and touched his shoulder. He kept saying the same thing. She then got onto the bed and was talking to him. He looked awake. S.M. then told her of a woman he had seen in his dream. He said she was blonde with blue eyes, had a beautiful body and appeared scared. F.M. spoke to the accused about the dream.
[5] F.M. said the accused then began to look at her and said that she looked different. He said she had blue eyes and blonde hair and looked like an angel. F.M. has green eyes and did not have blonde hair.
[6] F.M. testified that the accused then began to sniff her, to touch her on her breasts and legs and kissed her. F.M. said she told the accused that Dr. R. had said they should not have sex. This was due to medication the accused was taking. However, the accused persisted. F.M. said she repeated what she had said about the doctor’s instructions. However, the accused continued without making further inquiries as to whether F.M. was consenting.
[7] F.M. said she was very scared. She did not know the accused’s intentions. She was afraid due to S.M.’s history. She said the accused was not seeing her but someone else. She said the accused held her down by her shoulders. Everything happened quickly. She had been wearing clothes but was then naked. She could not recall details. She said she felt paralyzed and could not speak. She put her hands up, palms out, against the accused’s chest. She was trying to get the accused to stop but she was scared and did not say “no”. Her efforts had no effect. He had vaginal intercourse with her without her consent. The accused was going very fast during intercourse.
[8] When the accused finished F.M. went to the bathroom and got her robe. She then went down to her daughter’s room crying and afraid. She said the accused did not seem like himself afterwards. She said that at no time did she agree to have sex with the accused.
[9] No other evidence was called by the Crown and the accused did not testify or call any witnesses.
[10] Counsel for the accused made no submission to the affect that F.M. was actually consenting. Rather, he submitted that the circumstances ought to leave me with a reasonable doubt about whether the accused had the required mens rea. This submission was advanced on the basis that the accused may have had an honest but mistaken belief in consent. Counsel relies on the fact that the incident occurred in the context of a long marriage. He submits that in a marital situation a husband must have some licence to initiate sexual activity with his wife in the manner S.M. did. He also relied on the evidence that F.M. did not say no or effectively convey to the accused that she was not consenting.
[11] I am unable to accept this submission. Section 273.2(b) of the Criminal Code provides that it is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity in question “where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. The evidence of F.M., which I accept in its entirety, establishes that she repeatedly told the accused that his doctor said that they should not have sex. The common sense and obvious implication of those statements was that F.M. wanted to follow the doctor’s advice. While it was not a categorical statement of non-consent it was a circumstance known to the accused which triggered the need for reasonable steps on his part to ensure F.M. was consenting.
[12] There is no evidence in the record that the accused took any reasonable steps to ascertain whether F.M. was consenting. This was not a situation where there was a step by step progression of sexual activity occurring in circumstances revealing no need to make such inquiries.
[13] Based on the foregoing I am satisfied beyond a reasonable doubt that the accused had the mens rea required to establish the offence of sexual assault contrary to s. 271 of the Criminal Code.
[14] I return to the element of non-consent on the part of the complainant. F. M. was a thoroughly convincing witness. As I accept her evidence I am also satisfied of this essential element of the offence beyond a reasonable doubt. Consent is subjective on the part of the complainant: R. v. Ewanchuk, [1994] 1 S.C.R. 330.
[15] For these reasons I registered a finding of guilt.
Subsequent Proceedings
[16] After I found the accused guilty counsel for the accused advised me that he was asserting that the accused should be found not criminally responsible on the basis of mental disorder, pursuant to s. 16 of the Criminal Code.
[17] Crown counsel agreed that an extensive report prepared by Dr. A. Iosif, a forensic psychiatrist at the Centre for Addiction and Mental Health, should be filed as an exhibit and considered by the court. Crown and defence counsel jointly submitted that no further evidence was required and that I should make a finding of not criminally responsible on the basis of the report.
[18] After carefully considering Dr. Iosif’s report I indicated I was satisfied that it supported such a finding. The report is 31 pages long and very detailed. Dr. Iosif concludes that the accused suffers from “Bipolar Affective Disorder”. He notes that S.M. was hospitalized twice around the time of this offence for “mania”. He notes that the accused was visiting his family on a pass from that hospitalization at the time of the offence. Dr. Iosif explains in his report why he concludes that it is likely that S.M. failed to appreciate the nature and quality of his actions as a result of his mental disorder.
[19] I would add that F.M. said in her testimony that the accused did not appear to be himself at the time. As she put it, “He was not seeing me”. F.M. has considerable knowledge of the accused and his history.
[20] I concluded that I was well satisfied that the requirements for a finding of not criminally responsible had been met on a balance of probabilities and I entered that finding on the indictment.
[21] After hearing from counsel I determined that I would not hold a disposition hearing. Pursuant to s. 672.45(1.1) of the Criminal Code I remanded the accused to appear before the Ontario Review Board for disposition. I reminded S.M. that the terms of his judicial interim release order continue pending a disposition by the Review Board, as provided for by s. 672.46(1) of the Criminal Code.
[22] I also made a DNA order and an order that the accused comply with the provisions of the Sex Offender Registration Act. Those orders were made in compliance with ss. 487.051(3)(a) and 490.012(1) of the Criminal Code.
F. Dawson J.
Released: December 10, 2015
COURT FILE NO.: CR-13-593-00
DATE: 20151210
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
S.M.
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Justice F. Dawson
Released: December 10, 2015