CITATION: R. v. S.R.W., 2015 ONSC 8130

COURT FILE NO.: 13-0928

DATE: December 2, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

S.R.W.

accused

John O’Halloran, for Her Majesty the Queen

Felicia Tippins, for the accused

REASONS FOR judgment

ABRAMS, J (Orally)

Overview

[1] The accused, S.R.W. (“the accused”) is charged with multiple offences on a ten count indictment against three complainants.

[2] With respect to the complainant, K.L.Q. (“Ms. K.L.Q.”), counts one through seven are alleged to have been committed between the 1st day of November, 2005 and the 31st day of December, 2009.

[3] With respect to the complainant, B.L.C. (“Ms. B.L.C.”), counts eight and nine are alleged to have been committed between the 1st day of August, 2009 and the 30th day of September, 2011.

[4] With respect to the complainant, Tina Louise Perry (“Ms. Perry”), count ten is alleged to have been committed between the 1st day of May, 2003 and the 31st day of August, 2003.

[5] The trial commenced on July 6, 2015. On July 7th, following the completion of the evidence of Ms. K.L.Q., the Crown requested that counts two and five been marked as dismissed. So ordered.

[6] On July 10th, following the completion of the evidence, the Crown conceded that the evidence of the only witness called by the defence, Ms. C.R., was fatal to the Crown’s case with respect to the complaint of Ms. Perry. Thus, there will be a finding of not guilty with respect to count ten.

[7] That leaves counts one, three, four, six and seven, with respect to Ms. K.L.Q., and counts eight and nine with respect to Ms. B.L.C..

Evidence of the complainants

Ms. K.L.Q.

[8] Ms. K.L.Q. was a single mother, who made her living as a truck driver, when she met the accused who worked at the same local trucking firm. Ms. K.L.Q. lost her job with the company as a result of an accident. Thus, she was in a somewhat vulnerable position when she began a relationship with the accused, who was himself in a relationship with Ms. C.R., at the time. That did not, however, stop the accused from moving Ms. K.L.Q. into the residence that he shared with his children and Ms. C.R. and her daughters at 21 W[…] Street in the city of Brockville.

[9] To say, as Ms. K.L.Q. did, that the situation in the house was strained as between the accused and Ms. C.R. is understandable. Ms. K.L.Q. was sleeping on a blow-up mattress in the living room while the accused was sleeping on the couch. Ms. C.R. was sleeping in a bedroom upstairs. At that time, things were good between the accused and Ms. K.L.Q.. He had rescued her after she had lost her employment, moved her into the house that he shared with Ms. C.R., and their relationship was developing nicely. As Ms. K.L.Q. described: “S.R.W. would take me out to dinner…we would do things with the kids…there were some very good times.”

[10] Ms. C.R. and her daughters would eventually move out. That is when things started to turn bad between Ms. K.L.Q. and the accused. Ms. K.L.Q. and the accused’s children “started not getting along”. This caused stress between Ms. K.L.Q. and the accused. She would get “smacked” or “punched” by the accused to “calm me down”. Admittedly, Ms. K.L.Q. would fight back, but she never instigated any physical contact with the accused.

[11] The accused became more controlling of Ms. K.L.Q. as time progressed. The violence escalated. She suffered bruises on her legs, arms and back as a result of his assaults. She suffered a fat lip. He would “smack” her with an open hand and also “punched” her with a closed fist. He pushed her up against the wall and down stairs.

[12] In conjunction with the escalating violence, the accused became more sexually assertive over Ms. K.L.Q.. He wanted her to experiment with “different sexual things”. He tied her up with the rope from a window blind and hit her with a wooden dowel that he also used to penetrate her vagina. As Ms. K.L.Q. testified: “The first time was fine [but] I didn’t want it again”. He did this to her maybe “four or five times” in the bedroom at 21 W[…] Street. Again, he would tie her up with a rope and use a wooden dowel, which she described as being as big around as “your baby finger”, to “smack” her bum, chest, arms and the backs of her legs. He also penetrated her vagina with the wooden dowel on more than one occasion. When she protested by telling him that she “didn’t want him to do it”, any of it, he would laugh and say that she was fine, or he would tell her to “shut up”.

[13] Admittedly, she did not try to leave the residence and she was content to have sexual intercourse with the accused. But apart from the first time that she agreed to try the “kinky” stuff, she was unequivocal in her evidence that she did not consent to being beaten or penetrated with the wooden dowel. Ms. K.L.Q. did concede, however, that there were times when she was asked by the accused whether she “liked it” that she would respond “ya”, but only to make the accused ”happy”, and because she was afraid of him. To that end, the accused had threatened to call the Children’s Aid Society (“CAS”) and have her daughter taken away from her. Thus, she both feared being hurt physically by the accused, and she feared that he would make good on his threat to call the CAS and have her daughter apprehended.

[14] There were also times when the accused would ply Ms. K.L.Q. with alcohol before forcing her to engage in sexual activity that she did not consent to. As she testified: “He wouldn’t force it down my throat”, but she was in fear of being hurt or losing her daughter if she did not comply. So she drank the liquor, whiskey, straight until “I was somewhere in between”, meaning between being drunk or sober.

[15] The accused’s proclivity for sexual adventure progressed to the point that he would shove his fist into Ms. K.L.Q.’s vagina. How many times, she could not remember. She told him that she did not like it and he would respond by telling her to “shut up”. He would continue, and laugh at her. She was afraid to say anything more to him for fear that he would call the CAS and have her daughter apprehended, as he threatened to do routinely. She experienced discomfort and pain when he penetrated her vagina with his fist, but admittedly, she did nothing about it. As she testified, in addition to the fear that she described for her physical safety and for her daughter: “I was ashamed”.

[16] It was while Ms. K.L.Q. was still living at 21 W[…] Street that she met Ms. B.L.C., who worked at Tim Horton’s. They eventually became good friends and Ms. K.L.Q. invited Ms. B.L.C. over to the residence.

[17] Ms. B.L.C. had a spouse and children, although she was having trouble in her marriage. On one occasion when Ms. B.L.C. was over, the two women and the accused drank some alcohol. This was near the end of Ms. K.L.Q.’s relationship with the accused. The three engaged in sexual activity, together.

[18] Ms. K.L.Q. believed that the accused continued to have a sexual relationship with Ms. B.L.C. after her relationship with the accused ended. She disclosed to Ms. B.L.C. some of what she was subjected to by the accused, because: “I knew she wouldn’t judge me”.

[19] Ms. K.L.Q. ended the relationship and moved with her daughter to an apartment located at 89 K[…] Street in B[…]. Ms. K.L.Q. did not know that the residence had previously been, in her words, a “crack shack”. But she did not have any place else to go and Social Services helped supplement her rent. The accused offered to change the locks on the apartment and in fact installed locks that he owned. Unbeknownst to Ms. K.L.Q., the accused kept a set of keys to the locks. Admittedly, there were times when Ms. K.L.Q. let the accused in. However, there were also times when she would awaken in the night to find the accused on top of her, having intercourse with her. She would tell him to get off, and he would “just laugh”. She confronted him about how he was getting in and questioned him about having keys. He denied that he had any. She called the police. She testified that she did not have enough money to change the locks again, and that there were times when she invited him into the apartment for coffee, after he had sexually assaulted her. When asked why she would do that, she said: “Because I was stupid”.

[20] Ms. K.L.Q.’s daughter, who was approximately eight years of age at the time, did not become aware of these assaults because she was staying at her maternal grandparents. Ms. K.L.Q. would eventually call her former spouse to come and pick-up their daughter to keep her, due to the nature of the accommodations.

[21] In cross-examination, Ms. K.L.Q. conceded that on the first occasion that the accused penetrated her with an object, he told her to “relax, you’re going to like it or enjoy it”. However, she told him that she did not like it but notwithstanding her protests, it happened again. He penetrated her with his fist, chair legs and toys.

[22] Ms. K.L.Q. was challenged during cross-examination that she did not tell the accused “no” in response to the incidents that she testified to. She conceded that sometimes she did not say anything to him, out of fear. However, she was unequivocal that there were times when she told him that she was not enjoying it, being penetrated by an object, and that she wanted him to stop. Further, if there were times when she did not say “no”, it was “out of fear”.

[23] Ms. K.L.Q. explained during cross-examination that, although “welfare” was paying for her apartment, the accused was also helping her out “financially”. He also helped her move, and would bring coffee by from time to time, when she would let him in.

[24] Ms. K.L.Q. conceded in cross-examination that on those occasions when she called the police to have the accused removed from her apartment, she did not tell the police about “the sex”.

[25] Ms. K.L.Q. conceded in cross-examination that there were some “very good times” during the relationship with the accused. And, “to a point”, she enjoyed sexual experimentation with the accused. However, she was unequivocal when she said: “There were times when I would say I am not enjoying this. There were times when I told him to stop”. Ms. K.L.Q. underscored her point when she said: “If I said no to him for sex, you just didn’t do that. So, I never said no for the initial intercourse out of fear”.

Ms. B.L.C.

[26] Ms. B.L.C. was a mother of two boys who was working in a minimum wage job and struggling in her marriage when she was introduced to the accused. She had met Ms. K.L.Q. at the driver-through window of the Tim Horton’s where she worked. The two began to socialize and became friends.

[27] On one occasion, Ms. K.L.Q. visited with Ms. B.L.C. at her home where the two had some drinks. Thereafter, Ms. B.L.C. walked Ms. K.L.Q. home to 21 W[…] Street where she met the accused for the first time. Ms. K.L.Q. and the accused were in a relationship at the time.

[28] Ms. B.L.C. was drawn into a “threesome” with the accused and Ms. K.L.Q., which she conceded she was a willing participant in. However, part way through the event, the accused became dissatisfied with Ms. K.L.Q. sexually and directed her to leave the room.

[29] Ms. B.L.C. continued to have intimate liaisons with the accused, although she knew that Ms. K.L.Q. was still in a relationship with him. Ms. B.L.C. was having trouble with her marriage. She felt that she could confide in the accused. They would meet for coffee and she would, in effect, bear her soul to him. In her words: “I thought I could talk to him about my marriage… I thought he was someone I could talk to”.

[30] At one point, Ms. B.L.C. stopped speaking with both the accused and Ms. K.L.Q. while she was trying to fix her marriage. However, when she finally separated from her husband, and had no place to go with her children, it was the accused that came to her rescue, inviting Ms. B.L.C. and her sons to live with him.

[31] For a period of time the relationship was good. However, they would eventually begin to argue at which time the accused told her to get out. Ms. B.L.C. had nowhere to go with her children. In the midst of any argument, she described sitting on the couch when the accused grabbed her by the hair and pulled her onto the floor. At that point she testified: “I just didn’t know what to do”. She knew that her boys could hear the argument. She did not want them to witness the violence. Fortunately, the accused’s daughter, L.W., was there and took the boys out for a walk so that they would not see the violence perpetrated on Ms. B.L.C. by the accused.

[32] Ms. B.L.C. went to the bedroom following the assault and sent a text to the boys’ father to come and pick them up, which he did. Further, her ex-husband and his father came back the next day to pick up Ms. B.L.C.. She stayed with her ex-husband for a couple of days before transitioning to her cousin’s home.

[33] Thereafter, Ms. B.L.C. was able to obtain emergency housing in the town of Prescott, when the boys returned to her care. However, it was while she was in Prescott that the accused would eventually work his way back into her life. As she would later conceded in cross-examination: “He’s so good with his words, so convincing. I still had feelings for the guy. I was trying to please him. He kept telling me that it was normal.”

[34] And so, Ms. B.L.C. continued to have intimate relations with the accused. He was using her home as his place in Prescott when he was working at the local trucking company. He had nowhere to store his tools, so she let him keep the tools at her place and gave him a key to have access. He was contributing financially to the household, which made Ms. B.L.C. feel more secure, particularly when her daughter moved in and there was one more mouth to feed. Ms. B.L.C. was living on Ontario Works and collecting child tax credit at the time. However, it was not long before the physical and sexual violence began to escalate.

[35] By the middle of 2011, Ms. B.L.C. testified that the relationship was not going well. The police were called to attend as a result of neighbours who heard the accused speaking to Ms. B.L.C. in ways that they did not think was right.

[36] When the accused demanded sex to relieve stress that he said resulted from his employment, Ms. B.L.C. felt that she could not say “no”, out of fear of being hurt. It was at this point that the accused began to penetrate her vagina with his fist. He would say to her: “You feel too loose (meaning her vagina)…We need to tighten you up.” And then he would put his fist into her vagina. She begged him to stop saying “I can’t take no more”, to which he would respond “You can do it – just take a little more”. Ms. B.L.C. testified that this happened on several occasions. There were also times when he would demand oral sex from her while in the shower. Ms. B.L.C. conceded that she did not mind performing oral sex, but she protested at the point when the accused would push his penis so far into her throat that she would vomit. She said, “I told him it hurt…I couldn’t handle it”, to which he would respond “Just try a little more”. She testified that she was crying at the time and that she told him “Please stop, I can’t handle it any more”. Again, she would try to talk to him later to tell him that she did not want to do these things. But, as she testified: “He was so good with his words. He made it sound normal to do these things. I always thought that it would get easier”.

[37] Ms. B.L.C. made a couple of complaints to the police. The accused pressured her to ask the police to remove her comments about him and to insist that “I was the crazy one”. She would eventually speak with the police and recanted her story saying that “they had simply had an argument and that she took the wrong approach”. He also insisted that she apologize to his parents for the complaints that she had made against him. She refused. He responded by grabbing and shoving her, when she fell into a lazy boy chair.

[38] The accused bought a dildo with which he would penetrate her vaginally and anally, to the point that she would be bleeding. She told him that she did not want to use the dildo because it was too big, that she “couldn’t handle it”. She told him to “stop” using it because it was “hurting way too much”. He would respond to her by saying: “Just a little more” and “I need to get my pleasure”. She testified that he penetrated her with the dildo on “ten or more times”. Admittedly, she never sought medical attention for the injuries that she suffered because: “I just didn’t want to talk to anybody. I didn’t want anyone to know”.

[39] Ms. B.L.C. would eventually stop speaking with the accused about her feelings, which she kept to herself. She kept thinking that maybe the accused was right, maybe it would get easier. But she conceded: “It never got better. It never got easier”.

[40] Ms. B.L.C. would eventually make contact with Ms. K.L.Q. “a little bit” over the internet, when Ms. K.L.Q. told her that she should get out of the relationship with the accused. Ms. B.L.C. testified: “I told her (B.L.C.) about him fist fucking me”. Ms. K.L.Q. admitted that she had been assaulted, too, by the accused. Ms. B.L.C. thought that it was then that the two discussed the idea of going to see the police “about this…but we didn’t”.

[41] Finally, Ms. B.L.C. testified that she knows now that “what was being done [to me] was not normal. I’m in a relationship now and it is very hard”.

[42] Ms. B.L.C. conceded during cross-examination that the “threesomes” involving the accused and Ms. K.L.Q. could have happened more than once, as Ms. K.L.Q. testified. In any event, Ms. B.L.C. did not quarrel that she was a willing participant at that time. Moreover, she agreed that she had not told the investigating officer about the “threesomes” because she was “very embarrassed and ashamed”.

[43] When challenged during cross-examination as to why she stayed in the face of the allegations that she is now making, she said: “His [the accused’s] words were very convincing. It was almost like he was a psychologist. He would say come on just a little more. I told him several times to stop because it was hurting. He never stopped. I didn’t feel that I had a choice”.

[44] When challenged about the complaint that she made to the police regarding the incident wherein he grabbed her by the arm and shoved her (while he was living on Front Avenue), she testified: “He told me what to say” [when calling the police back to recant] “I felt pressured…I still had feelings for this guy…I thought that maybe we could work things out”.

[45] When challenged that she never made it clear to the accused that she was not consenting during the sexual assaults that she testified to, she reiterated: “No, I did tell him that it hurt too much…You shouldn’t even keep trying that when someone says no”.

[46] In addition to the foregoing evidence, the Crown called Tina Louise Perry to testify in relation to count ten. I do not find it necessary to review the evidence of Ms. Perry, for the reasons articulated by the Crown above.

[47] At the close of case for the Crown, Defence advised that it would be calling the accused’s daughter, L.W.. In the end, Defence called only Ms. C.R..

Ms. C.R.

[48] Ms. C.R. had a relationship with the accused for approximately ten years. Ms. C.R.’s evidence, largely speaking, was related solely to the complaint made by Ms. Perry. As the Crown conceded, and I agreed, the credibility and reliability of Ms. C.R.’s evidence, with respect to Ms. Perry’s complaint, was such that there was reasonable doubt, and thus the accused was acquitted on count ten.

[49] Ms. C.R. confirmed that the accused moved Ms. K.L.Q., who she referred to as his “new girlfriend”, into the home before Ms. C.R. had moved out. Further, she thought that she may have met Ms. B.L.C. through Tim Horton’s, and had perhaps received a message from her at some point in time. Finally, Ms. C.R. testified in chief that the accused had not been physically abusive to her, and that he did not make her participate in any sexual act that she did not want to participate in.

[50] In cross-examination, Ms. C.R. conceded that although there was no physical violence between them, the accused “made me feel worthless”, and that she was “pretty much economically dependent on him”. She did concede, however, that while they were living in Spencerville, the accused restrained her when she wanted to get away from the situation. Moreover, she said in a police statement that she was afraid that the accused would hurt her.

Positions of the parties

Defence

[51] Defence contends that the issue to be determined, with respect to both complainants, is consent, which the Crown bears the onus to prove. Put another way, the accused is not asserting that the sexual behaviour now complained of by both women did not happen. Rather, he is saying that both women consented to the sexual behaviour now complained of. Further, the accused asserts that it was only after the two women spoke with each other that they decided that they were sexually assaulted. Accordingly, the accused contends that the two women colluded with one another, but perhaps not intentionally. That said, the accused asserts that their collusion need not have been intentional.

[52] The accused also ask the Court to consider other issues related to the both women’s evidence, which the accused characterized as frailties. Consider both women’s conduct after the sexual activities now complained of. Consider that Ms. K.L.Q. never had the locks changed on her apartment, although she now asserts that the accused was breaking into her residence and sexually assaulting her while she slept. Consider that Ms. B.L.C. gave the accused a key to her place in Prescott. Consider the delay of both women in reporting these offences to the police. Consider that both women were at least initially willing to experiment with the accused in adventurous sexual behaviour, as it was called.

Crown

[53] The Crown contends that there are compelling similarities between the evidence given by both women, that the Court can consider in accordance with the Court of Appeals decision in R. v. L. (T.B.) 2003 CanLII 35769 (ON CA). To that end, which includes the evidence of Ms. C.R., the accused was:

(1) Verbally abusive;

(2) Controlling; and

(3) Manipulative.

[54] The Crown also points to the fact that all three women had young children, and to some extent they were economically dependent on the accused. Further, the accused had the women around for a while, he would begin to denigrate them and would eventually move in a replacement [woman] before they were out of the house.

[55] Focusing then on the evidence of the two principle complainants, the Crown asserts that:

(1) Both women testified to there being both good times and bad times with the accused;

(2) However, the low point for both women was when he penetrated their vaginas with his fist;

(3) Both women were humiliated and ashamed about what they were subjected to;

(4) Thus, they were reluctant to report the sexual assaults to the police;

(5) The accused strategically installed the women in places where he had easy access to them, once they had decided to move out of his residence. With respect to Ms. K.L.Q., the accused installed his locks on her new apartment, which he had a key to. With respect to Ms. B.L.C., he asked to store his tools at her place in Prescott and obtained a key so that he could ostensibly access his tools when needed.

(6) Accordingly, as the Crown contends, the accused moved both women out when he did not want them around all of the time. However, he wanted access to them.

(7) Both women lived in hope that their relationship with the accused would get better. Thus, both women were conditioned or groomed, over time.

(8) The accused knew how violent his sexual acts were. Both women were unequivocal that they suffered discomfort and pain when the accused penetrated their vaginas with his fist. Further, Ms. B.L.C. testified to crying in pain and bleeding when the accused penetrated her with the dildo.

(9) Both women testified that he ignored their please to stop and that he laughed at them. Thus, he ignored their pain in order to get his pleasure.

[56] The Crown queries what motive the women had to collude? The Crown contends that they were fair in their evidence, conceding that there were sexual acts that they both consented to with the accused. Moreover, they both testified that there were good times with the accused, when the relationships were new. Thus, the tenor of their evidence did not expose any bias or revenge.

Law

Sexual assault

[57] As McLachlin C.J. said for the Court in R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440: “It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact. From this, it follows that sexual acts performed without consent and without an honest belief in consent constitute the crime of sexual assault. (P.5 at para 1)

[58] A conviction for sexual assault under s.271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he or she touches another person in a sexual way without consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question. (See R. v. Ewanchuck, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330)

[59] A person has the required mental state, or the mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest but mistaken belief in consent if he or she believed that the complainant communicated consent to engage in the sexual activity. However, there are limited cases in which the accused may rely on this defence. For instance, the accused cannot argue that he misinterpreted the complainant saying “no” as meaning “yes”. (See J.A., supra, at para 24 in reference to Ewanchuck at para 51)

[60] The first issue to be determined in this case is whether either of the complainants consented, which is relevant to the actus reus. The Crown must prove the absence of consent to fulfill the requirements of the wrongful act. (See J.A., supra, at para 25.)

[61] Parliament has enacted provisions that specifically define consent for the purpose of sexual assault. In particular, s.273.1 establishes as follows:

273.1 (1) Subject to subsections (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where:

(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. (See R.V., supra, at para 28).

[62] The defence of honest and mistaken belief in consent was recognized and limited by Parliament in s. 273.2 of the Criminal Code:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the accused believed that that complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from the accused’s

(ii) reckless 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. (See J.V., supra, at paras 29 and 30).

[63] Section 273.1(2)(e) establishes that it is an error of law for the accused to believe that the complainant is still consenting after she “expresses…a lack of agreement to continue to engage in the activity”. (See J.V., supra, at para 40)

[64] Further, the provision in question (s.273.1(2)(e)) establishes that the accused must halt all sexual contact once the complainant expresses that she no longer consents. This does not mean that a failure to tell the accused to stop means that the complainant must have been consenting. As the Supreme Court of Canada has repeatedly held, the complainant is not required to express her lack of consent for the actus reus to be established. Rather, the question is whether the complainant subjectively consented in her mind. (See Ewanchuk, supra, and R. v. (M. L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3 as referenced in J.V. supra, at para 41.)

Analysis

Consent

Ms. K.L.Q.

[65] Based on the evidence of Ms. K.L.Q., I make the following finds of fact:

(1) Ms. K.L.Q. consented to experiment with the accused the first time that he tied her up with a window blind rope, struck her with a wooden dowel and penetrated her vagina with the same wooden dowel. Thereafter, she did not consent to the four or five times that he struck her with the wooden dowel and penetrated her vagina with the same wooden dowel.

(2) When Ms. K.L.Q. protested by telling the accused that she did not want him to do it, any of it, he would laugh at her, tell her she was fine and to “shut up”.

(3) Ms. K.L.Q. feared that the accused would hurt her physically, or alternatively that he would call the CAS and make complaints against her in order to have her daughter apprehended from her.

(4) Ms. K.L.Q. never consented to the accused penetrating her vagina with his fist. She pleaded with him to stop because she did not like it and his response was to tell her to “shut up”.

(5) She experienced discomfort and pain as a result of the accused penetrating her vagina with his fist.

(6) She felt shame as a result of being subjected to the accused penetrating her vagina with his fist.

(7) Although Ms. K.L.Q. invited the accused into her apartment for coffee and to talk, from time to time, she did not consent to him accessing her apartment uninvited and unannounced and initiating sexual intercourse with her. When she told the accused to stop and get off of her, his response was to laugh at her.

(8) I find as a fact that Ms. K.L.Q. was a credible and reliable witness. When it was reasonable for her to concede where she was wrong in her evidence, she did so without hesitation. I do not find that any inconsistencies in Ms. K.L.Q.’s evidence make the main points of her testimony less believable or reliable.

(9) I remind myself that the timing of disclosure of sexual assault signifies nothing. Rather, the timing of disclosure depends upon the circumstances of the particular victim. There is no inviolable rule on how people who are victims of trauma like sexual assault will behave. Any rules once believed to be sound were based on what we now understand to be stereotypes and myths. In assessing the credibility of this complainant, the timing of the complaint is simply one circumstance in the factual mosaic of the case. A delay in disclosure, or the fact that a complainant remains in an abusive relationship, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

(10) Thus, I accept and find as a fact that Ms. K.L.Q. never consented to the four or five times that the accused hit her with the wooden dowel, as described, and penetrated her vagina with the same wooden dowel, apart from the first occasion when she agreed to experiment with the accused. I accept and find as a fact that Ms. K.L.Q. never consented to the accused penetrating her vagina with his fist. Finally, I accept and find as a fact that Ms. K.L.Q. never consented to the accused entering her apartment, uninvited and unannounced, and initiating sexual intercourse with her.

(11) In all of the circumstances that I do accept and find as facts, I remind myself that I must determine what was going on in the mind of the complainant. Even though Ms. K.L.Q. was not required to express her lack of consent (See J.A., supra, at paras 41 and 45), she did so. She told the accused that she did not want him to hit her with the wooden dowel and insert it into her vagina. She told the accused that she did not want him to penetrate her vagina with his fist. She told the accused to get off of her when he entered her apartment, uninvited and unannounced, and initiated sexual intercourse with her. Thus, the Crown has proven the absence of consent to fulfill the requirements of the wrongful act.

[66] Further, as the Supreme Court of Canada said in Ewanchuk and other decisions since:

The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault. (See Ewanchuk at para 31 and J.A. at para 47.)

Honest but mistaken belief

[67] Although Defence did not raise this argument in submissions, I feel it necessary nonetheless to address it.

[68] Again, the provisions of s. 273.1 (2)(e) Criminal Code establishes that the accused must halt all sexual contact once the complainant expresses that she no longer consents. Further, s. 273.2(b) Criminal Code states that a person wishing to avail himself of the mens rea defence must not only believe that the complainant communicated her consent, but must also have taken reasonable steps to ascertain whether she “was consenting” to engage in the sexual activity in question at the time that it occurred. (See J.V., supra, at para 42.)

[69] On all of the circumstances before me, I find as a fact that the accused knew that Ms. K.L.Q. was not consenting to the sexual activity in question at the time that it occurred, or at very least he was reckless. The accused laughed at Ms. K.L.Q. and told her to “shut up” when she expressly stated that she did not want him to hit her with the wooden dowel, penetrate her with the dowel, penetrate her with his fist, and engage in sexual intercourse with her when he entered her apartment, uninvited and unannounced.

[70] The Crown has proven the mens rea element of the offence of sexual assault. Thus, there will be a finding of guilty with respect to count four.

Sexual assault with a weapon

[71] For the accused to be found guilty of this offence, the Crown must prove beyond a reasonable doubt that: (1) the accused intentionally applied force to Ms. K.L.Q.; (2) Ms. K.L.Q. did not consent to the force that the accused intentionally applied; (3) the accused knew that Ms. K.L.Q. did not consent to the force that the accused intentionally applied; (4) a weapon was used; and (5) the force that the accused intentionally applied took place in circumstances of a sexual nature.

[72] I accept and find as facts the same facts as set out above under the offence of sexual assault. Further, I consider the same legal principles with respect to what the Crown must prove beyond a reasonable doubt.

[73] In summary, I accept and find as a fact that Ms. K.L.Q. never consented to the four or five times that the accused hit her with the wooden dowel, as described, and penetrated her vagina with the same wooden dowel, apart from on the first occasion that she agreed to experiment with the accused.

[74] In all of the circumstances that I do accept and find as facts, I remind myself that I must determine what was going on in the mind of the complainant. Even though Ms. K.L.Q. was not required to express her lack of consent (See J.A. supra, at paras 41 and 45), she did so. She told the accused that she did not want him to hit her with the wooden dowel and insert it into her vagina. Thus, the Crown has proven the absence of consent to fulfill the requirements of the wrongful act.

[75] Again, on all of the circumstances before me, I find as a fact that the accused knew that Ms. K.L.Q. was not consenting to the sexual activity in question at the time that it occurred, or at very least he was reckless. To recall, the accused laughed at Ms. K.L.Q. and told her to “shut up” when she expressly stated that she did not want him to hit her with the wooden dowel and penetrate her vagina with the wooden dowel. She was in pain and pleading with the accused not to do what he did. However, the accused was, at very least, indifferent to the pain and distress that he caused to Ms. K.L.Q. by doing what he did. He was doing it for his own pleasure.

[76] Accordingly, the accused intentionally applied force to Ms. K.L.Q.. Ms. K.L.Q. did not consent to the force that the accused intentionally applied. The accused knew that Ms. K.L.Q. did not consent to the force that the accused intentionally applied. A weapon is anything, any object, that could be used to injure, kill, threaten or intimidate another person, whether it was designed or made for that purpose or not. In all of the circumstances, I find that the wooden dowel that the accused struck Ms. K.L.Q. with and used to penetrate her vagina was used to injure and to threaten her. Ms. K.L.Q. testified to bruises that she suffered on her body when she was struck with the wooden dowel, and to the discomfort and pain that she experienced when it was inserted into her vagina. She testified to being in fear of the accused as a result of this conduct. Finally, the force that the accused intentionally applied took place in circumstances of a sexual nature, i.e. for his sexual pleasure.

[77] The Crown has proven the mens rea element of the offence of sexual assault with a weapon. Thus, there will be a finding of guilty with respect to count six.

Assault with a weapon

[78] For the accused to be found guilty of this offence, the Crown must prove beyond a reasonable doubt that: (1) the accused intentionally applied force to Ms. K.L.Q.; (2) Ms. K.L.Q. did not consent to the force that the accused intentionally applied; (3) the accused knew that Ms. K.L.Q. did not consent to the force that the accused intentionally applied; and (4) a weapon was involved in the accused’s assault of Ms. K.L.Q..

[79] I accept and find as facts the same facts as set out above under the offences of sexual assault and sexual assault with a weapon. Further, I consider the same legal principles with respect to what the Crown must prove beyond a reasonable doubt.

[80] In summary, I accept and find as a fact that Ms. K.L.Q. never consented to the four or five times that the accused hit her with the wooden dowel, as described, apart from on the first occasion when she agreed to experiment with the accused.

[81] Accordingly, the accused intentionally applied force to Ms. K.L.Q.. Ms. K.L.Q. did not consent to the force that the accused intentionally applied. The accused knew that Ms. K.L.Q. did not consent to the force that the accused intentionally applied. To recall, a weapon is anything, any object, that could be used to injure, kill, threaten or intimidate another person, whether it was designed or made for that purpose or not. In all of the circumstances, I find that the wooden dowel that the accused struck Ms. K.L.Q. with was used to injure and to threaten her. Ms. K.L.Q. testified to bruises that she suffered on her body when she was struck with the wooden dowel. She testified to being in fear of the accused as a result of this conduct.

[82] The Crown has proven both the actus reus and mens rea elements of the offence of assault with a weapon. Thus, there will be a finding of guilty with respect to count three.

Assault

[83] To recall, Ms. K.L.Q. testified that the accused became more controlling of her as time progressed. The violence escalated. She suffered bruises on her legs, arms and back as a result of his assaults. She suffered a fat lip. He would “smack” her with an open hand and also “punch” her with a closed fist. He pushed her up against the wall and down stairs. Thus, I find as a fact that the accused struck Ms. K.L.Q. on occasions other than when he hit her with the wooden dowel. Further, these strikes were delivered with either an open hand or with a closed fist, which Ms. K.L.Q. testified that she did not consent to.

[84] For the accused to be found guilty of this offence, the Crown must prove beyond a reasonable doubt that: (1) the accused intentionally applied force to Ms. K.L.Q.; (2) Ms. K.L.Q. did not consent to the force that the accused intentionally applied; and (3) the accused knew that Ms. K.L.Q. did not consent to the force that the accused intentionally applied.

[85] I find as a fact that the accused struck Ms. K.L.Q. with both an open hand and a closed fist. Thus I find that he intentionally applied force against her. I find as a fact that Ms. K.L.Q. did not consent to the force that the accused intentionally applied. Further, the force that he applied to her occurred in the context of a domestic situation. When he was not pleased with how she kept the house, or folded the laundry, to use two examples that she cited, she would be beaten by the accused. Thus, I find as a fact that the accused knew that Ms. K.L.Q. did not consent to the force that he intentionally applied to her. The accused had to have known that Ms. K.L.Q. was not consenting when she fought back to defend herself, as she testified. Put simply, the accused struck Ms. K.L.Q. to intimidate, demean and ultimately to control her.

[86] The Crown has proven both the actus reus and mens rea elements of the offence assault. Thus, there will be a finding of guilty with respect to count one.

Break, enter and commit sexual assault

[87] For the accused to be convicted of this offence, the Crown must prove beyond a reasonable doubt that: (1) the accused broke into a place; (2) the accused entered a place; and (3) the accused committed the indictable offence of sexual assault in the place.

[88] As a general rule, breaking into a place requires the application of some force, however slight, to gain entry. Opening, unlocking or unlatching a door all involve enough force to count as a breaking. Further, a place may be any of many things. It includes an apartment where people live. Finally, the accused must have committed the indictable offence, in this case sexual assault, in the place that he broke and entered. For all of the reasons set out above, the accused committed the indictable offence of sexual assault when he initiated sexual intercourse with Ms. K.L.Q., without her consent, while she was sleeping at 89 K[…] Street in B[…], when he entered the apartment uninvited and unannounced.

[89] Admittedly, there were times when Ms. K.L.Q. let the accused in, but only for the purpose of having a coffee and visiting. However, I find as a fact that there were also times when Ms. K.L.Q. would awaken in the night to find the accused on top of her, and having intercourse with her. She would tell him to get off, and he would “just laugh”. I find as a fact that he was able to unlock the door and enter the apartment because he installed the locks and kept keys so that he could have access to Ms. K.L.Q. whenever he chose to.

[90] Thus, I find that the accused broke into a place, Ms. K.L.Q.’s apartment at 89 K[…] Street in B[…], by unlocking the door and entering. Thereafter, the accused committed the indictable offence of sexual assault, for the reasons set out above.

[91] The Crown has proven both the actus reus and mens rea elements of the offence of break, enter and commit sexual assault. Thus, there will be a finding of guilty with respect to count seven.

Sexual assault

Analysis

Consent

Ms. B.L.C.

[92] Based on the evidence of Ms. B.L.C., I make the following findings of fact:

(1) When the accused demanded sex to relieve his stress that he said resulted from his employment, Ms. B.L.C. felt that she could not say “no” out of fear of being hurt.

(2) The accused began to insert his fist into her vagina telling her that she felt “too loose” and that “she needed to be tightened up.”

(3) Ms. B.L.C. begged the accused to stop penetrating her vagina with his fist say: “I can’t take no more”.

(4) The accused responded: “You can do it – just take a little more.”

(5) The accused penetrated Ms. B.L.C.’ vagina on several occasions with his fist.

(6) She repeatedly told him to “stop” and that she could “not take it or handle it.”

(7) In the course of oral sex, the accused pushed Ms. B.L.C. head down onto his penis, and so deep into her throat, that it caused her to vomit. Again, Ms. B.L.C. said to the accused that it “hurt” and that she “could not handle it any more.”

(8) The accused penetrated Ms. B.L.C.’ vagina and anus with a dildo to that point that she was bleeding.

(9) Ms. B.L.C. told the accused that the dildo was “too big” and that she “couldn’t handle it.”

(10) Ms. B.L.C. told the accused that the penetration of her vagina and her anus with the dildo was “hurting way too much” and told him to “stop.”

(11) The accused responded to her: “Just a little more” and “I need to get my pleasure”.

(12) The accused penetrated Ms. B.L.C. with the dildo “ten or more times”.

(13) Ms. B.L.C. never sought medical attention for her injuries because she was too ashamed. She did not want to speak with anyone about it.

(14) The accused manipulated Ms. B.L.C. psychologically by telling her that it would get easier for her as time went on.

(15) I find as a fact that Ms. B.L.C. was a credible and reliable witness. When it was reasonable for her to concede where she was wrong in her evidence, she did so without hesitation. I do not find that any inconsistencies in Ms. B.L.C.’ evidence make the main points of her testimony less believable or reliable.

(16) Again, I remind myself that the timing of disclosure of sexual assault signifies nothing. Rather, the timing of disclosure depends upon the circumstances of the particular victim. There is no inviolable rule on how people who are victims of trauma like sexual assault will behave. Any rules once believed to be sound were based on what we now understand to be stereotypes and myths. In assessing the credibility of this complainant, the timing of the complaint is simply one circumstance in the factual mosaic of the case. A delay in disclosure, or that fact that a complainant remains in an abusive relationship, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

(17) Thus, I accept and find as a fact that Ms. B.L.C. never consented to the several occasions when the accused penetrated her vagina with his fist. Further, Ms. B.L.C. never consented to the times when the accused pushed his penis so far into her throat that it caused her to vomit, even though she may have consented to the initial oral sex. Finally, Ms. B.L.C. never consented to the ten or more times that the accused penetrated her vagina and her anus with the dildo to the point that she was bleeding.

(18) In all of the circumstances that I do accept and find as facts, I remind myself that I must determine what was going on in the mind of the complainant. Even though Ms. B.L.C. was not required to express her lack of consent (See J.A. supra at paras 41 and 45), she did so. She told the accused that she could not handle him inserting his fist into her vagina. She repeatedly told him to stop. She told the accused that she could not take it anymore or handle it when he pushed his penis down her throat to the point that she would vomit. She told the accused that she could not handle being penetrated with the dildo at all because it was too big, and certainly not to the point of bleeding, which caused her pain.

[93] Thus, the Crown has proven the absence of consent to fulfill the requirements of the wrongful act.

[94] Again, I remind myself of the admonition given by the Supreme Court of Canada in Ewanchuk and other decisions since, where the court said:

The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault. (See Ewanchuk at para 31 and J.A. at para 47.)

Honest but mistaken belief

[95] Although Defence did not raise this argument in submissions, again I feel it necessary nonetheless to address it.

[96] To recall, the provisions of s. 273.1 (2)(e) Criminal Code establishes that the accused must halt all sexual contact once the complainant expresses that she no longer consents. Further, s. 273.2(b) Criminal Code states that a person wishing to avail himself of the mens rea defence must not only believe that the complainant communicated her consent, but must also have taken reasonable steps to ascertain whether she “was consenting” to engage in the sexual activity in question at the time that it occurred. (See J.V. supra, at para 42.)

[97] On all of the circumstances before me, I find as a fact that the accused knew that Ms. B.L.C. was not consenting to the sexual activity in question at the time that it occurred, or at very least he was reckless. When Ms. B.L.C. pleaded with the accused to stop, whether he was inserting his fist into her vagina, pushing his penis down her throat to the point of vomiting, or penetrating her vagina and her anus with a dildo to the point of bleeding, the accused’s consistent response was to tell her to “take just a little more”, or “you can do it”, all for the purpose of the accused getting his pleasure, as he called it.

[98] The Crown has proven the mens rea element of the offence of sexual assault. Thus, there will be a finding of guilty with respect to count nine.

Assault

[99] For the accused to be found guilty of this offence, the Crown must prove beyond a reasonable doubt that: (1) the accused intentionally applied force to Ms. B.L.C.; (2) Ms. B.L.C. did not consent to the force that the accused intentionally applied; and (3) the accused knew that Ms. B.L.C. did not consent to the force that the accused intentionally applied.

[100] To recall, Ms. B.L.C. testified that for a period of time the relationship was good, until she and the accused had an argument and the accused told her to get out. But Ms. B.L.C. had nowhere to go with her children. She described sitting on the couch when the accused grabbed her by the hair and pulled her onto the floor. At that point she testified: “I just didn’t know what to do”. She knew that her boys could hear the argument. She did not want them to witness the violence. Fortunately, the accused’s daughter, L.W., was there and took the boys out for a walk so that they would not see the violence perpetrated on Ms. B.L.C. by the accused.

[101] Ms. B.L.C. went to the bedroom following the assault and sent a text message to the boys’ father to come and pick them up, which he did. Further, her ex-husband and his father came back the next day to pick-up Ms. B.L.C.. She stayed with her ex-husband for a couple of days before transitioning to her cousin’s home.

[102] Query why a mother would give up custody of her children, even for a time, unless she had been subjected to some form of domestic abuse? Query also why she would contact the children’s father immediately to come and pick them up, unless she was subjected to some form of domestic abuse. Simply put, her account of this incident makes sense. Ms. B.L.C.’s evidence on this point, as on every other, was credible and reliable. I find as a fact that she was pulled from the couch by the hair of her head, by the accused. Thus I find that he intentionally applied force against her. I find as a fact that Ms. B.L.C. did not consent to the force that the accused intentionally applied. The force that he applied to her occurred in the context of a domestic situation in which the accused and Ms. B.L.C. had been arguing. The accused told Ms. B.L.C. to get out. However, she had nowhere to go with her children. The accused then underscored his insistence that she get out by pulling her from the couch by the hair of her head. Thus, I find as a fact that the accused knew that Ms. B.L.C. did not consent to the force that he intentionally applied to her. Put simply, the accused pulled Ms. B.L.C. from the couch and onto the floor by her hair to control and demean her.

[103] The Crown has proven both the actus reus and mens rea elements of the offence assault. Thus, there will be a finding of guilty with respect to count eight.

Collusion

[104] To recall, Ms. B.L.C. eventually made contact with Ms. K.L.Q. “a little bit” over the internet, when Ms. K.L.Q. told her that she should get out of the relationship. Ms. B.L.C. testified: “I told her (B.L.C.) about him fist fucking me”. Ms. K.L.Q. admitted to her that she had been assaulted to by the accused. Ms. B.L.C. thought that it was then that the two discussed the idea of going to see the police “about this…but we didn’t”.

[105] Accordingly, the accused contends that the two women colluded with one and other, but perhaps not intentionally. That said, the accused asserts that their collusion need not have been intentional.

[106] I remind myself that I must consider all of the circumstances that affect the reliability of the evidence of Ms. K.L.Q. and Ms. B.L.C. as they described the offences that they say the accused committed on them. Among those circumstances is any evidence that they may have shared their stories with one another, and as a result, whether accidentally or on purpose, they may have changed or altered their versions of what they say happened so that their testimony would be or seem similar to one another and thus more convincing. The likelihood, even the possibility, that what they testified to was tainted by collusion or collaboration with each other is a factor that I must consider, along with all of the other factors, in deciding whether or to what extent I believe what they said or rely upon it in deciding this case.

[107] I reject the contention that Ms. K.L.Q. and Ms. B.L.C. colluded with one another for purposes of giving their evidence at trial, for the following reasons:

(1) In large part, the only feature of the assaults and sexual assaults suffered by both women was related to the accused penetrating their vaginas with his fist. Otherwise, both women testified about features of the offences that pertained only to them.

(2) Ms. B.L.C. testified about being struck and penetrated with a wooden dowel. Further, she was penetrated vaginally, but not anally. Further, there were no features related to forced oral sex.

(3) Ms. B.L.C. testified to forced oral sex to the point of vomiting. Moreover, she testified to being penetrated vaginally and anally with a dildo.

(4) Thus, the similarities in their evidence, or lack thereof, were not such as to suggest even the possibility that their sharing of stories result in collusion.

(5) Even though I do not conclude that the feature of their evidence regarding the accused inserting his fist into their vaginas to be the result of tainting, collusion or collaboration, I must consider whether their evidence is reliable despite the opportunity for tainting, collusion, or collaboration, and whether I should rely on it less or not at all in deciding the use, because it may not be independent.

(6) I find as a fact that Ms. K.L.Q.’s and Ms. B.L.C.’ evidence was reliable, credible and independent. They were both fair to the accused in giving their evidence. They each conceded their mistakes in a reasonable manner, when it was reasonable to do so.

(7) Thus, I find as a fact that the contention that the complainants colluded is based on mere speculation.

[108] In my view, in addition to being independent, there was evidence from each witness that did, however, confirm the testimony of the other, in accordance with R. v. L (T.B.) supra, specifically:

(1) The low point for both women was when the accused penetrated their vaginas with his fist;

(2) Both women were humiliated and ashamed about what they were subjected to;

(3) Thus, they were reluctant to report the sexual assaults to the police;

(4) The accused strategically installed the women in places where he had easy access to them, once they had decided to move out of his residence. With respect to Ms. K.L.Q., the accused installed his locks on her new apartment, which he had a key for. With respect to Ms. B.L.C., he asked to store his tools at her place in Prescott and obtained a key so that he could ostensibly access the tools when needed.

(5) Both women lived in hope that their relationship with the accused would get batter. Thus, both women were conditioned or groomed, over time.

(6) The accused knew how violent his sexual acts were. Both women were unequivocal that they suffered discomfort and pain when the accused penetrated their vaginas with his fist.

(7) Both women testified that he ignored their please to stop, that he laughed at them and demeaned them.

Conclusion

[109] For all of the reasons set out above, there will be convictions registered with respect to counts one, three, four, six, seven, eight and nine.

The Honourable Mr. Justice B. W. Abrams

Released: December 2, 2015

CITATION: R. v. S.R.W., 2015 ONSC 8130

COURT FILE NO.: 13-0928

DATE: December 2, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

S.R.W.

accused

REASONS FOR JUDGMENT

Abrams, J.

Released: December 2, 2015