Court File and Parties

COURT FILE NO.: 1889/16 DATE: 20170306

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – J.R.M. Defendant

Counsel: N. Stoner, for the Crown K. Marley, for the Defendant

HEARD: January 3, 5 and 6, 2017

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO ORDER MADE UNDER SECTION 486.4 and SECTION 486.4(2.1) OF THE CRIMINAL CODE OF CANADA

Raikes J.

[1] The defendant, J.R.M., stands charged with

• Assault of N.B. contrary to s. 266 of the Criminal Code (Count #1);
• Mischief exceeding $5,000 by wilfully damaging the residence of M.D. contrary to s. 430(3) of the Criminal Code (Count #2);
• Four counts of sexual assault of M.D. contrary to s. 271 of the Criminal Code (Counts #3-6); and
• Assault of M.D. contrary to s. 266 of the Criminal Code (Count #7).

[2] At the commencement of trial, Mr. J.R.M. pleaded guilty to counts one and two: assault of N.B. who is a son of M.D. and is a minor, and mischief.

[3] The trial dealt with the remaining counts of assault and sexual assault of his former common law partner, Ms. M.D.. Each of the remaining charges is alleged to have occurred in Sarnia between January 1, 2013 and November 14, 2015.

[4] Publication bans were made at the commencement of trial pursuant to s. 486.4 in respect of the sexual assault charges and pursuant to s. 486.4 (2.1) of the Criminal Code of Canada for the charge involving N.B..

[5] The sexual assault charges involve the following allegations:

• Mr. J.R.M. urinated on Ms. M.D. without her consent when they were engaged in sexual activity in the shower of her home
• Mr. J.R.M. urinated on her chest as Ms. M.D. was performing fellatio in the shower, and rubbed his fingers on chest before putting them in her mouth
• Mr. J.R.M. urinated in her vagina while they were having vaginal intercourse in a parking lot at night
• Mr. J.R.M. urinated in her vagina on two consecutive nights without warning and contrary to Ms. M.D.’s previously expressed wishes
• Mr. J.R.M. forced Ms. M.D. to have vaginal intercourse in the shower of her home within days of the birth of their son
• On 20-30 occasions, Mr. J.R.M. forced Ms. M.D. onto her stomach during consensual vaginal intercourse and then anally penetrated her without her consent.

[6] The assault charge arises from an incident when Mr. J.R.M. is alleged to have choked Ms. M.D. during a sexual encounter.

[7] I will first outline the legal principles that apply in this case, then review the evidence and make findings of fact. As I review the evidence, I will assess and indicate for each alleged incident whether the Crown has satisfied its burden to prove the constituent elements of the offence beyond a reasonable doubt.

Law

[8] S. 266 and 271 respectively of the Criminal Code make it an offence to assault or sexually assault another person. S. 265(1) defines an assault. That section provides that:

“A person commits an assault when (a) Without the consent of another person, he applies force intentionally to that other person, directly or indirectly; …”

The remainder of that subsection does not apply here.

[9] In R. v. Ewanchuk, [1999] 1 S.C.R. 330, Major J. for the majority of the court, articulated the rationale underlying the provisions of the Criminal Code dealing with sexual assault and assault. He wrote at para 28:

“Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle… It follows that any intentional but unwanted touching is criminal.”

[10] In R. v. J.A., 2011 SCC 28, the Supreme Court of Canada considered the essential elements of the offence of sexual assault. At paras 23 and 24 of that decision, the Court stated:

“[23] 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 touches another person in a sexual way without her consent. Consent for this purpose is the actual subjective consent in the mind of the complainant at the time of the sexual activity in question: Ewanchuk. As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consent is not obtained.

[24] A person has the required mental state, or 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 believed that the complainant communicated consent to engage in the sexual activity. However, as discussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence.”

[11] S. 273.1 of the Criminal Code defines “consent” for the purposes of s. 271 as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

[12] S. 273.1(2) clarifies that no consent is obtained 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 the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.”

[13] The law is clear: there is no defence of implied consent. The absence of consent is subjective and must be determined by reference to the complainant’s subjective internal state of mind toward the touching at the time it occurred: R. v. Ewanchuk, supra. There must be “ongoing, conscious and present consent to the sexual activity in question”: R. v. J.A., supra, at para 65.

[14] An honest but mistaken belief in consent operates to negate the mens rea of sexual assault: R. v. Ewanchuk, supra, at para 44. The availability of the defence of honest but mistaken belief in consent in a sexual assault case is both recognized and limited by Parliament in s. 273.2 of the Criminal Code. The section states:

“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.”

[15] In Sansregret v. The Queen, [1985] 1 S.C.R. 570 at p. 584, the Supreme Court of Canada explained the concepts of recklessness and wilful blindness as follows:

“Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and the persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry.”

[16] The defence of honest but mistaken belief in consent arises “where the complainant has not consented to the sexual activity but the accused was operating under a mistaken belief that the ‘complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused’ ”: R. v. Dippel, 2011 ABCA 129 at para 12, citing R. v. Ewanchuk at para 49.

[17] What is required of an accused in taking reasonable steps to ascertain that the complainant was consenting depends on the particular circumstances of the case. Depending on the circumstances, it may require an accused to seek and obtain an unequivocal indication of consent from the complainant at the time of the sexual activity: R. v. Crangle, 2010 ONCA 451 at para 29.

[18] The constituent elements of an assault are:

1. The intentional application of force by the accused on the complainant
2. That application of force was without the consent of the complainant, and
3. The accused knew that the complainant did not consent to that application of force.

[19] Every criminal trial, regardless of the charge, involves the following fundamental principles: the presumption of innocence and the burden of proof on the Crown.

[20] Every person accused of a crime in Canada is presumed innocent of that crime unless and until the Crown proves each and every essential element of the offence beyond a reasonable doubt. In an assault or sexual assault trial, that burden never shifts. The defendant need not prove his innocence.

[21] In R. v. Lifchus, [1997] 3 S.C.R. 320 at para 39, the Supreme Court of Canada provided guidance to trial judges on the instructions to be given to jurors as to the meaning of “beyond a reasonable doubt”. That guidance applies with equal force to a judge alone trial. The court wrote:

“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before [the court] satisfied [the court] beyond a reasonable doubt that the accused is guilty.

What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of Justice. It is so ingrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if [the court] believe[s] the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, [the court] must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy [the court] of the guilt of the accused beyond a reasonable doubt.

On the other hand, [the court] must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, [the court is] sure that the accused committed the offence [the court] should convict since this demonstrates that [the court is] satisfied of his guilt beyond a reasonable doubt.”

[22] Where, as here, there are competing versions of critical events and credibility is important, the analytical framework in R. v. W.(D.), [1991] 1 S.C.R. 742 applies. In R. v. W.(D.), supra, at para 28, the Supreme Court of Canada held that a jury should be instructed on the issue of credibility as follows:

“First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

[23] In R. v. Thomas, 2012 ONSC 6653, Justice Code commented on these principles and the manner of their application at paras 23 and 24:

“23. …[W.(D.)] does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”)….

24. …A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown witnesses prove guilt beyond a reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.(D.) are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.”

[24] In determining whether the Crown has met its burden of proof, I must consider all of the evidence. It is not simply an exercise of choosing as between two different versions of events. I can accept or reject all or any part of any witness’ testimony. Ultimately, the issue is whether the Crown has proven the essential elements of the offence beyond a reasonable doubt on the totality of the evidence.

[25] I now consider the evidence and set out my findings in respect of each charge.

Time Frame

[26] It is helpful at the outset to provide the background to the relationship between Mr. J.R.M. and Ms. M.D., the time periods when they co-habited, and other significant events that assist in the timing and location of some of the alleged assaults.

[27] Ms. M.D. is presently 32 years old. She is a mother of four children:

• N.1 born in 2005
• N.B. born in 2006
• A. born in 2011, and
• N.2 born […], 2015.

[28] Ms. M.D. and Mr. J.R.M. are the biological parents of N.2. The older three children are from a prior relationship and resided at all times with Ms. M.D.. I have specified N.2’s date of birth because it bears on the timing of one of the alleged sexual assaults.

[29] Ms. M.D. and Mr. J.R.M. first became acquainted on an online dating site. They communicated by computer for a couple of months before they met for the first time in person in September, 2013. Within a week of their first meeting, Mr. J.R.M. moved in with Ms. M.D. and her three children.

[30] Ms. M.D. owned a semi-detached residence in Sarnia. There was a shed in the backyard. Ms. M.D.’s bedroom was located on the top floor of the residence, across the hall from the main bathroom that had a bathtub and shower. The kitchen and living room were located one level down on the main floor. All but one of the sexual assaults is alleged to have occurred in Ms. M.D.’s residence, either in the bedroom or bathroom just described.

[31] As mentioned, Mr. J.R.M. moved into Ms. M.D.’s residence in September 2013. He resided there until they had an argument in December, 2013 when he left and lived briefly at his mother’s home. They reconciled on New Year’s Eve and Mr. J.R.M. returned to reside with Ms. M.D. and her children on January 1, 2014.

[32] In January 2015, Mr. J.R.M. was charged with domestic assault of Ms. M.D.. It was a term of his release that he not contact or be with her unless she agreed or consented. As a result of the charge, he moved out and lived with his sister.

[33] He pleaded guilty to the domestic assault on April 22, 2015 and was sentenced to 12 months probation. Soon after the guilty plea and in April 2015, Mr. J.R.M. resumed residing with Ms. M.D. and the children. He continued residing with them until November 2015 when his relationship with Ms. M.D. ended. He slept in Ms. M.D.’s bedroom whenever he was residing with her.

Disclosure to Police

[34] On November 15, 2015, Ms. M.D. met with police in Sarnia in relation to allegations involving Mr. J.R.M.’s behaviour toward her daughter, A.. At that first meeting at the police station, Ms. M.D. was formally cautioned and an oath to tell the truth was administered.

[35] Within minutes of being cautioned and an oath given, Ms. M.D. was pointedly asked whether Mr. J.R.M. had done anything to her since the domestic assault charge in January 2015; viz. had he assaulted or sexually assaulted her. She said he had not.

[36] In cross-examination at trial, Ms. M.D. admitted that in light of the allegations she now makes against Mr. J.R.M., she lied to police under oath on November 15, 2015. She testified that she did not want to talk about the allegations against Mr. J.R.M. or that she was not ready to do so. She did not say to police that she was not ready to discuss these events, rather that was her evidence given at trial as to why she admittedly lied to police on November 15, 2015.

[37] In November, 2015, Mr. J.R.M. was charged with sexual impropriety involving Ms. M.D.’s daughter, A.. He was held in custody for that charge. It was a term of his pre-trial incarceration that he not contact either A. or Ms. M.D.. Despite that term, Mr. J.R.M. wrote a number of letters to Ms. M.D. from jail.

[38] Ms. M.D. wrote a single letter in response to Mr. J.R.M.. She did not report Mr. J.R.M.’s letters to police until she became aware that a plea agreement had been reached between Mr. J.R.M.’s defence counsel and Crown counsel concerning the charges related to A.. Mr. J.R.M. was to plead guilty to certain charges while others were to be withdrawn. Ms. M.D. was extremely upset by that deal; she felt the sentence agreed upon was far too lenient.

[39] She spoke with Detective Constable Soucek of the Sarnia Police on or shortly before December 15, 2015 to advise that she believed there was more disclosure to be made against Mr. J.R.M. by the children which would result in more charges against Mr. J.R.M.. She also disclosed to Detective Constable Soucek the fact of letters received from Mr. J.R.M. in contravention of the terms of his incarceration

[40] Ms. M.D. attended at the police station with her son, N.B., on December 15, 2015 to meet with the same investigating officer, Detective Constable Soucek. She and N.B. were interviewed and, as a result, further charges were laid against Mr. J.R.M.. She provided the letters written by Mr. J.R.M. from jail. She agreed in cross-examination that she succeeded in having Mr. J.R.M. spend more time in jail although she denied that was her objective.

[41] Ms. M.D. testified at the preliminary hearing that she did not report the alleged sexual assaults and assault to police earlier because she was blindly in love with Mr. J.R.M.. At trial, she indicated that it was because she feared him, and perhaps both.

[42] When Ms. M.D. met with Detective Constable Soucek on December 15, 2015, she did not recount to him the allegations which are now before me as charges against Mr. J.R.M.. She disclosed the letters written by him and the allegation involving N.B. was made. Again, she was asked if Mr. J.R.M. did anything to her. The officer suggested to her that he sensed that she had something to say but was perhaps not yet ready to do so. Ms. M.D. indicated to him near the end of the interview that “I can’t think of anything.” While not under oath on that occasion, Ms. M.D. was clearly invited to disclose any assaults or sexual assaults of her by Mr. J.R.M. and did not. She could not recall any.

[43] Detective Constable Soucek gave Ms. M.D. some paper and asked her to write out what Mr. J.R.M. did to her. She returned to the police station nine days later with a four page written statement of the allegations which underly the charges before this court.

[44] Thus, it is clear that: A. Ms. M.D. lied to police while under oath; B. She subsequently claimed not to be able to recall any criminal acts by Mr. J.R.M. as against her; C. She was extremely upset by the expected sentence to be imposed on Mr. J.R.M. for his conduct toward A.; D. She came forward with N.B. to make new allegations against Mr. J.R.M. and at that time disclosed the letters he wrote to her from jail, but did not recount what he did to her; E. She wanted to keep him away from her family which would be achieved if he stayed in custody; F. She came forward with these allegations against Mr. J.R.M. nine days after her second meeting with Detective Constable Soucek after she had already disclosed the letters and N.B. had spoken to police.

The timing of and motivation for her allegations is troubling. Added to these concerns, there are a number of inconsistencies in her evidence from the preliminary hearing and that given at trial. In these circumstances, I have serious misgivings as to her credibility and reliability.

[45] The Crown called only Ms. M.D. and Detective Constable Soucek as witnesses at trial. To a very large degree, the Crown’s proof relies on the testimony of Ms. M.D. as to what happened and whether she consented to the activity in question.

[46] I turn now to the specific incidents to which the charges of sexual assault and assault relate. These incidents involve, inter alia, urination as part of the sexual activity and anal intercourse. I note that defence counsel agreed in closing argument that consent to sexual intercourse or fellatio by Ms. M.D. did not equate to consent to sexual intercourse with urination on or in Ms. M.D..

Bathroom Incidents Involving Urination

[47] Ms. M.D. testified to two incidents in which Mr. J.R.M. urinated on her while they were in the shower in her home. The first incident occurred while she was pregnant with N.2. He was born […], 2015. Accordingly, this incident took place at some point in 2014.

[48] The second incident is alleged to have taken place after Mr. J.R.M. resumed residing with Ms. M.D. and the children between April, 2015 and the end of their relationship in November, 2015.

[49] I will deal with the evidence concerning each of these two incidents separately.

Lying in Tub

[50] Ms. M.D. was in the shower when Mr. J.R.M. came into the bathroom. He removed his clothes and joined her in the shower. They were standing face-to-face with his back to the faucet. They began to have sexual intercourse while standing. He asked her to lay on the floor of the tub so that he could urinate on her. She testified that she had previously told him that she was not interested “in that stuff”.

[51] Ms. M.D. laid on the floor of the tub while Mr. J.R.M. urinated on her chest and stomach. She was not forced to lay down. There was no physical struggle, nor any threats. Mr. J.R.M.’s voice was calm throughout.

[52] Ms. M.D. testified that he told her that this was something he wanted to try and “I gave in”. This was something he had brought up on many occasions that he wanted to do. She indicated that she decided to lay down and let him do this because she did not want to argue with him.

[53] Ms. M.D. did not urinate on Mr. J.R.M. although he asked her to do so. She told him that she could not because of her pregnancy. He accepted her explanation. She left the shower first without any resistance from Mr. J.R.M.. Nothing else happened in the bathroom on this occasion.

[54] Mr. J.R.M.’s evidence regarding this incident largely mirrored that of Ms. M.D.. He asked her to lie down in the tub for the purpose of urinating on her as part of their sexual encounter. She knew what he intended to do because he told her. She laid down without any objection or indication that she did not want to do this.

[55] Ms. M.D. agreed in her evidence that the kissing and sexual intercourse in the shower that preceded urination was entirely consensual. The issue here is whether she consented to Mr. J.R.M. urinating on her or whether he had honest but mistaken belief that she was consenting.

[56] Ms. M.D. testified that Mr. J.R.M. was frequently looking at pornography. He came to her with different activities that he observed online that he wanted to try. If she declined or refused, he would sulk or pester her to justify why she did not want to do it. At times, they argued. There was yelling and hurtful things were said by Mr. J.R.M..

[57] Mr. J.R.M. acknowledged in his evidence that he often did not take no for an answer. That is not to say that he forced her; rather, he would ask her to explain why she did not want to engage in that activity. He would try to persuade her to try it. Sometimes they argued about sex. There was no argument on this occasion; he asked and she acceded to his request. There was no force, no threat, no hesitation.

[58] I find that the evidence raises a reasonable doubt as to whether Ms. M.D. consented to the urination by Mr. J.R.M. on this occasion. The evidence of Ms. M.D. and Mr. J.R.M. are largely consistent as to Ms. M.D.’s conduct and what Mr. J.R.M. communicated, all of which leaves me unable to say that Ms. M.D. did not consent to this request by Mr. J.R.M.. In any event, my concerns with Ms. M.D.’s credibility and reliability leave me in doubt as to whether she “gave in” or willingly participated in this unusual sexual activity.

[59] If it could be found that Ms. M.D. did not wish to participate in this activity in her mind, I would find that the defence of honest but mistaken belief exists on this occasion having regard to: A. Mr. J.R.M. and Ms. M.D. had discussed this activity several times previously; B. Mr. J.R.M. made clear what he wanted to do; C. Ms. M.D. made no objection by word or action from which one might infer lack of consent; D. Ms. M.D. lay down in the tub on her own; E. She said or did nothing immediately after the activity to indicate her lack of consent; and F. Mr. J.R.M. did nothing to negate her free will; viz. he did not force her or threaten her or coerce her participation. Her testimony that she “gave in” does not in these circumstances amount to lack of free will, nor does his conduct amount to willful blindness.

Fingers in Mouth

[60] Two of Ms. M.D.’s children, A. and N.2, have serious medical issues. As a result, she often had a nurse stay at night to care for the children.

[61] On a night when the nurse was downstairs with the children, Ms. M.D. went upstairs for a shower. As before, Mr. J.R.M. joined her after she was already in the shower. Ms. M.D. testified that she was tired and simply wanted to have her shower and go to bed. She said nothing to Mr. J.R.M. about how she felt.

[62] Again, they were standing face-to-face with his back to the showerhead. She had already washed her hair and was almost ready to get out when he joined her. They started kissing. He asked her to get on her knees and to give him oral sex. She did so. Ms. M.D. testified that as she was engaged in performing fellatio, he put his hand on her head and pushed her head back. He then urinated on her chest. He said nothing to her about urinating on her before he did this.

[63] According to Ms. M.D., Mr. J.R.M. then told her that he wanted to put his urine in her mouth. He rubbed his fingers on her chest and put his fingers in her mouth. His urine from her chest was on his fingers. She told him no; she was gagging. He then put his penis back in her mouth. He did not ask her about putting his penis back in her mouth. She let him put his penis back in her mouth as she did not wish to fight.

[64] When he put his penis back in her mouth, she could still taste some urine. He did not urinate while his penis was in her mouth. She remembers pushing away from him. She was gagging and felt close to vomiting. She left the shower first. He did not attempt to stop her. She left the bathroom and went to her bedroom where she was crying.

[65] She testified that Mr. J.R.M. went outside to the shed. He came back upstairs and was angry that she was crying in the bedroom. She testified that he walked up and down the hallway in an agitated way. She could tell from his body language that he was angry. Her description had him storming around.

[66] Ms. M.D. testified that Mr. J.R.M. had mentioned previously wanting to put his urine in her mouth. That was not something she ever wanted to do.

[67] Mr. J.R.M. gave a different account of what happened. He testified that he did not rub his fingers on her chest after he urinated and did not force his fingers into her mouth. He agreed that he guided her head back so that he could urinate on her chest. He also agreed that he did put his penis in her mouth after he urinated on her chest. This was something that he believed that she wanted or was willing to do as part of the fellatio. She did not indicate by anything she said or did that she did not want to take his penis into her mouth after he urinated.

[68] Mr. J.R.M. testified that he told Ms. M.D. that he was going to urinate on her chest before he did it and she did not indicate by word or conduct that she did not wish for him to do that. Urination was part of their sexual activity by this point. Ms. M.D. had previously indicated when she did not want to do something sexually and he always respected her wishes in that regard.

[69] As is evident, the evidence of Ms. M.D. and Mr. J.R.M. is materially different on a number of key points: a. She agreed that the fellatio was consensual until he pushed her head back and urinated on her. He maintains that the entire incident was consensual; b. She says he pushed her head back unexpectedly to urinate on her. He says he merely guided her head back to facilitate the urination; c. She says there was no forewarning that he was going to urinate on her. He maintains this was something that was a regular part of their sexual activity and was discussed; d. They disagree whether he rubbed his fingers on her chest and forced them into her mouth; and e. They disagree whether she was willing to continue fellatio after he urinated on her.

[70] With respect to this incident, I am left in doubt as to what actually transpired. That should not be construed to mean that I accept Mr. J.R.M.’s version of what happened.

[71] The difficulty here once again goes back to my concerns with Ms. M.D.’s credibility and reliability. It informs my doubt as to what really happened and whether it was consensual. I am not satisfied beyond a reasonable doubt.

The Dumpster Incident

[72] In March, 2015, Mr. J.R.M. was residing with his sister. He was on interim release on the domestic assault charge. Nevertheless, he and Ms. M.D. were in regular contact by phone, text and social media.

[73] Ms. M.D. testified that she picked up Mr. J.R.M. at his sister’s house so that they could go together to her girlfriend’s house to visit for an hour or two. They visited longer during which she consumed two or three alcoholic drinks.

[74] On their return, Mr. J.R.M. drove. It was night time. He pulled down a side street and into a parking lot of a government building near the waterfront in Sarnia. She testified that she thought they were going to go for a walk although they had not discussed doing that before he parked the vehicle.

[75] When they got out of the van, they began kissing. She could not recall if he was touching other parts of her body. He told her to take her pants, socks and boots off. It was a typical March night which is to say it was cold outside. She was wearing a coat, pants, socks and boots.

[76] Ms. M.D. testified in-chief that when he told her to take her pants and socks off, she “knew” he was going to urinate as part of their sexual activity. She indicated that he had urinated on or in her previously as part of a sexual encounter, and he had indicated to her that he wanted to keep trying urination as part of their sexual activities.

[77] She testified that she previously told Mr. J.R.M. that she did not wish to engage in urination as part of their sexual activity, that she did not enjoy it and thought it was disgusting. Nevertheless, she said nothing to Mr. J.R.M. when he told her to remove her pants etc.. She pulled her pants down and took off her boots.

[78] By this point, they were facing one another and were up against the dumpster in the parking lot. She testified that she and Mr. J.R.M. engaged in vaginal intercourse. According to Ms. M.D., Mr. J.R.M. urinated in her vagina during intercourse. She agreed that she consented to the kissing and vaginal intercourse. She testified that she did not consent to the urination and did not want that to happen but did not say so to Mr. J.R.M..

[79] After they finished including the urination, she testified that she put her clothes back on, got in the van and went home where she cleaned up. She did not discuss with him during the drive home what they had done and, specifically, the urination.

[80] In cross-examination, Ms. M.D. indicated that:

• she agreed to engage in sexual intercourse in the parking lot
• she knew that their sexual encounter was going to involve urination because he asked her to take her clothes off
• she took her clothes off anyway
• she did not walk away because she did not want to fight with him
• it certainly looked like she was consenting to the urination.

[81] Mr. J.R.M. told a slightly different story. He testified that in the weeks leading up to this encounter, he had texted or emailed Ms. M.D. about including urination as part of their sexual activity. It was something he had done with a previous partner and enjoyed. He pointed her to Internet sites where this activity was depicted.

[82] Mr. J.R.M. testified that they had a conversation about trying urination while they were in the vehicle as he was driving her back from her girlfriend’s. She indicated she was willing to try it. He agreed with her description of what happened in the parking lot by the dumpster except that he indicated that he removed his penis from her vagina and urinated on the outside of her vagina on this occasion.

[83] While Ms. M.D. testified that she only pulled her pants down, not off, Mr. J.R.M. testified that she did, in fact, remove her pants before they engaged in sexual intercourse.

[84] Mr. J.R.M. denied that Ms. M.D. previously indicated that she did not wish to have urination as part of their sexual encounters. To the contrary, she consented to that activity on this occasion and subsequent encounters.

[85] Mr. J.R.M. confirmed in his testimony that Ms. M.D. said nothing to him at any time while they were in the parking lot or during the sexual encounter to indicate that she did not consent to him urinating on her. Further, he testified that she did nothing by her actions to indicate a lack of consent; he believed based on their discussions and her conduct at the time that she was consenting to the urination.

[86] I find that the testimony of Mr. J.R.M. on this incident raises a reasonable doubt. It makes sense to me that knowing that urination was going to be part of the activity, Ms. M.D. would remove her pants so that they would not get wet. She insisted that she merely pulled them down, not off but mentioned only her socks and shirt were wet. I find that Ms. M.D. removed her pants so they would not get wet when he urinated during their sexual encounter.

[87] Further, I find that Ms. M.D. consented to the sexual activity on this occasion including the urination component. She knew he was going to urinate in or on her as part of the sexual encounter when he asked her to take her pants off. She continued with the sexual activity consistent with consent to what was to transpire. Her subsequent characterization of her state of mind is belied by her conduct at the time.

Night After Night Urination

[88] Ms. M.D. also testified to two incidents of urination in her vagina that occurred during sexual intercourse on consecutive nights in the bedroom at her home.

[89] According to Ms. M.D., on both nights they were engaged in sexual intercourse which was consensual. He was behind her in a spooning position. He urinated in her vagina without her consent and without any warning. She did not consent to the urination and was upset that he did it.

[90] Ms. M.D. testified that these incidents happened shortly after Mr. J.R.M. returned to live with her and the children after April, 2015.

[91] On the first night, Mr. J.R.M. came home very drunk. She indicated that this was not a common occurrence. As indicated, he was behind her and they were engaged in sexual intercourse when he urinated in her vagina. There was no discussion that he was going to do this.

[92] She testified that she had previously told him that she did not want to engage in urination as part of their sexual activity. They had discussed this following the dumpster incident a number of times where she made these views known to him.

[93] She testified that she was “covered in pee” and was very upset. She did not say anything to him at the time because he was drunk and she was not going to fight with him. She testified that she did not display that she was upset; she simply returned to bed crying. Mr. J.R.M. was by then passed out.

[94] In the morning, Ms. M.D. experienced a burning sensation and was in a lot of pain. She found it painful to urinate. She told Mr. J.R.M. about the burning sensation and pain and that she believed that came from him urinating inside her. She told him that she wanted to go to the hospital.

[95] Ms. M.D. testified that when she brought her pain to his attention Mr. J.R.M. simply indicated that it would be okay. Despite the pain that she was in, Mr. J.R.M. talked to her about wanting to do it again but did not say when. She testified in-chief that she told him that she did not want to do it “anymore”. This conversation took place in the morning following the first night. Mr. J.R.M. appeared to her to be sober and to understand what she was communicating.

[96] That night, they were again in bed engaged in sexual intercourse in the same position as the previous night. Mr. J.R.M. again urinated in her vagina in the course of sexual intercourse. He said nothing to her before or during this sexual encounter to ascertain that she was consenting to the urination.

[97] Ms. M.D. testified that when he removed his penis from her after urinating in her vagina on this occasion, she was in considerable pain. She was crying as he was urinating. She went immediately to the bathroom where she cleaned up. She then went back to bed still crying.

[98] The next day, she indicated to him how she felt about what had happened. She told him that she was upset that he had done it again. Mr. J.R.M. then became upset with her. He told her in a loud voice that she made him feel useless and that she did not do what he wanted her to do. He then went out to the shed in the backyard as he usually did when he was upset.

[99] Ms. M.D. indicated that she and Mr. J.R.M. argued regularly and often about “sexual stuff”. He would often get upset. There was a lot of swearing and yelling.

[100] In cross-examination, Ms. M.D. testified that:

• She did go to see her doctor regarding the pain she was experiencing in her abdomen/vagina the day after the second night of urination (day 3)
• Although she indicated at the preliminary hearing that she would consent to the release of her doctor’s records, she was never asked to sign anything and did not herself seek those records
• She testified at the preliminary hearing that this happened before he was charged with domestic assault in January 2015. She was wrong at the preliminary hearing; it happened after he returned home in April 2015 because it was in the Spring or Summer when he was working on a deck for an aunt.

[101] Ms. M.D. was challenged generally on her willingness to engage in a variety of sexual activities with Mr. J.R.M. including role playing, anal intercourse and sex involving urination. She was also challenged on the timing of her disclosure to police and her motive behind her allegations.

[102] I note, however, that the cross-examination of Ms. M.D. on the specifics of the urination in her vagina on consecutive nights did not include putting to her Mr. J.R.M.’s version of what happened before and between these two events.

[103] Mr. J.R.M. acknowledged in his evidence that he and Ms. M.D. had vaginal intercourse on consecutive nights where he urinated in her vagina as part of those encounters. He agreed with her description of the positions they were in during the sexual encounter.

[104] Mr. J.R.M. testified that he discussed urinating in her vagina before the sexual encounter on the first night and she was agreeable to it. He denied that urination was a non-consensual component of their sexual activity that night.

[105] Mr. J.R.M. further testified that Ms. M.D. did mention that she was in pain the morning after the first of the two nights. He denied that he was indifferent to her pain. He testified that he was “more than willing to let her go” to the hospital. He indicated that he offered to take her to the hospital or watch the children while she went to the hospital to be checked out.

[106] He took her complaints seriously and went online to see if the urination could cause the pain she was experiencing. He testified that he showed her the results of his searches that morning. There was nothing that connected urinating in a vagina with the pain or discomfort she was experiencing.

[107] He testified that they discussed whether she was willing to have sexual intercourse again with urination in her vagina in light of his Internet findings. She said she was willing to do so. His initial answer did not specify when they might do it again, only that she agreed to do so. He was then asked by his counsel the following leading question and gave the following answer:

“Q. And you asked her whether you could do it again that night and you say that she said yes? A. Yes.”

[108] Mr. J.R.M. also testified that he did not recall Ms. M.D. crying after the urination on the second night. Further, there was nothing she said or did either during the event or after the event that led him to believe that she did not want it to happen. She did not do anything by moving her body that led him to believe that she wanted the urination to stop once it started.

[109] I do not believe the evidence of Mr. J.R.M. as to what happened during the day after the first night in which he urinated in her vagina, nor do I accept his evidence that she readily agreed to vaginal intercourse with urination on the second night. Frankly, that makes no sense in light of her expressions of pain and discomfort which he acknowledged and her attribution of the cause of her pain to what they did the night preceding.

[110] I am not, however, satisfied beyond a reasonable doubt that Ms. M.D. did not consent to the sexual intercourse with urination on either the first or second night. She testified that she was in considerable pain and discomfort yet indicated that the vaginal intercourse on the second night was consensual, except for the urination. Moreover and more importantly, I remain in doubt that reliance can be placed on Ms. M.D.’s evidence without some corroboration given her admission that she lied under oath to police, that she only came forward with these allegations after she was disturbed by the sentence he was to get for what he did to A. and her motives to keep him away from her family.

[111] I must be satisfied beyond a reasonable doubt as to each constituent element of the offence including whether she consented to the act in question – the urination. I am in doubt.

[112] I turn now to the evidence that relates to another incident that took place in the shower at Ms. M.D.’s home, this time involving that vaginal intercourse soon after the birth of their son, N.2.

Allegation of Forced Intercourse

[113] N.2 was born […], 2015. He remained in hospital in the NICU for approximately a week after he was born. Ms. M.D. stayed in the hospital during that period, except when she visited Mr. J.R.M. and the other children at home.

[114] Ms. M.D. testified that she told Mr. J.R.M. that she would not be able to have vaginal intercourse for six weeks after she had the baby. She told him this on several occasions. She indicated that he told her that she had better practice her oral and anal sex if that was the case.

[115] Mr. J.R.M. disputes that testimony. He agreed that the subject of the timing for having sex after the baby came up a number of times but Ms. M.D. only told him that she would not be able to have intercourse “for a while”. She never placed a timeframe on it.

[116] Soon after the baby was born and while he was still in hospital, Ms. M.D. came home briefly. It was her birthday. Mr. J.R.M. and his mother were there with the other three children.

[117] Almost immediately after she was home, Mr. J.R.M. indicated to her that he wanted to have sexual intercourse. According to Ms. M.D., Mr. J.R.M. became angry when she made it clear that she could not have vaginal intercourse for six weeks on the advice of her doctor.

[118] Mr. J.R.M. went upstairs where he began smashing the walls. That conduct is the basis for the mischief charge to which he has pleaded guilty.

[119] Ms. M.D. testified that Mr. J.R.M. persisted in trying to get her to engage in sexual activity with him after he damaged the walls upstairs. For his part, Mr. J.R.M. agreed that he likely did keep asking Ms. M.D. when they could next have sexual intercourse.

[120] Suffice to say that Mr. J.R.M. was preoccupied with his own sexual gratification; he had no regard or consideration for Ms. M.D.. In that regard, he was single-minded and less than sensitive to his partner’s needs, but it is only a criminal act if he acted in the absence of Ms. M.D.’s consent.

[121] Before the baby came home but during the week that N.2 was in hospital, Mr. J.R.M. broached the subject of having vaginal intercourse again with Ms. M.D.. She told him that she was still bleeding. He suggested that they could have sex in the shower where the water would wash away any blood. This conversation happened in the kitchen.

[122] Ms. M.D. and Mr. J.R.M. went upstairs to the bathroom where they disrobed and got into the shower. Ms. M.D. bent over at the waist and Mr. J.R.M. then vaginally penetrated her from behind. Not surprisingly, Ms. M.D. was in some discomfort while this happened. She testified that she did not want to engage in vaginal intercourse but did so to avoid another fight or argument with Mr. J.R.M..

[123] Mr. J.R.M. agreed with Ms. M.D.’s description of the sexual activity; viz. what they did and where. He testified that this was consensual sexual activity. No threats or force was involved. He agrees that he instigated the discussion that led to sexual activity but denies that he forced Ms. M.D. to participate. He believed that their sexual activity was entirely consensual.

[124] I find that the sexual activity was consensual. Ms. M.D. went upstairs under her own power. She disrobed and entered the shower with Mr. J.R.M. for the purpose of having sexual intercourse. She bent over to facilitate that activity. She did so without force by or threat by Mr. J.R.M.. It was a conscious voluntary act. I note that at no time did Ms. M.D. indicate that her participation in the sexual activity was motivated by a fear of harm from Mr. J.R.M.. Her decision to placate his child-like attitude was just that: her decision.

Anal Intercourse

[125] Ms. M.D. testified to non-consensual anal intercourse which she indicated occurred on 20 – 30 occasions. She described one incident in some detail and indicated that the other incidents followed the same pattern.

[126] I note that Ms. M.D. initially could not recall these incidents when first asked in-chief if there was anything more. She reviewed a four page handwritten statement that she provided to police to refresh her memory.

[127] Ms. M.D. testified that she and Mr. M.D. were engaged in consensual vaginal intercourse in bed at home. He was behind her in what I gather was a spoon position. He asked her to roll onto her stomach. She thought he was going to then anally penetrate her and did not wish to do that so she did not roll over.

[128] Ms. M.D. testified that he pulled her arm and flipped her over onto her stomach. Once there, she simply laid there and let him penetrate her anally. She testified that she went to the bathroom after to cleanup and saw some bleeding. She was crying. He told her that she’d be okay. She recalls that she told him while it was taking place that it hurt but she does not know if he heard her. She did not say anything else.

[129] She indicated that she did not want to engage in anal intercourse. She testified that she previously told him that she was having bowel issues and did not want to do anal intercourse anymore; it hurt. She testified that whenever she said that, he got angry and they ended up in an argument with her crying.

[130] Mr. J.R.M. denied that he ever forced anal intercourse on Ms. M.D.. He testified that they had anal intercourse on the first night they met. It was a regular part of their sexual activities throughout their relationship. He acknowledged that she indicated that she had some bowel issues but denied that he ever continued any sexual activity when she indicated that she did not want to do it. All of their sexual activities were consensual.

[131] I am left in doubt as to which of Ms. M.D. and Mr. J.R.M. is telling the truth with respect to these incidents. Accordingly, I am not satisfied beyond a reasonable doubt.

Choking During Sex (Count 7 - Assault)

[132] The final allegation concerns an incident where the parties were in bed at home engaged in consensual vaginal intercourse. Ms. M.D. testified that Mr. J.R.M. placed his hands on her neck and applied pressure. She was lying on her back and he was on top of her.

[133] Ms. M.D. testified that Mr. J.R.M. started with his hand on her neck. He was holding her down with that hand in the area of her collarbone at the front of her neck. He was applying pressure so she could not breathe. She was pushing against his chest with her arms and was unable to push him off. He kept telling her to “push me harder”. She did not lose consciousness and the choking lasted a couple of seconds.

[134] Ms. M.D. indicated that she rolled off the bed to her right and ran to the bathroom because she felt that she was going to vomit. She was scared at the time as he had hurt her. He did not ask if he could do this as part of their sexual activity. She did not invite him to do it. They did not talk about it afterward. He was already outside in the shed when she came back to the bedroom. She recalls that she was very upset and crying.

[135] She testified that he walked down the hall saying “sorry, sorry, why don’t you charge me like the rest of the girls want to”.

[136] In cross-examination, Ms. M.D. testified that:

• She had lymphoma. As a result she had scars and bumps on her neck which was very sensitive;
• Even if he tried to kiss her neck, she would recoil in pain
• She claimed to police that her neck had marks from what he did but could not recall that there were any marks later.

[137] Mr. J.R.M. acknowledged in his evidence that Ms. M.D.’s neck is very tender. For that reason, he never touched her on the neck except once or twice by accident. He denies that he ever choked her or put his hand over her mouth and nose. This incident simply never happened.

[138] I have a reasonable doubt as to whether the choking occurred. Ms. M.D.’s evidence suffers from the credibility and reliability issues mentioned above. No corroborating evidence is offered. A nurse was regularly in her home during the period this occurred. If she was bruised, I would have expected someone to be able to verify the bruising. Absent corroboration, I am unwilling to accept Ms. M.D.’s testimony.

Conclusion

[139] I find the defendant not guilty of the charges in counts 3-7 inclusive.

“Original signed by R. Raikes”

Justice R. Raikes

Released: March 6, 2017

COURT FILE NO.: 1889/16 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – J.R.M. REASONS FOR JUDGMENT Raikes, J. Released: March 6, 2017