COURT FILE NO.: CR-13-0006 DATE: 2017-01-09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen P. Larsch, for the Crown

• and -

Jason Davidson, D. Gunn, for the Accused

Accused

HEARD: August 23 and 24, 2016, at Kenora, Ontario

Mr. Justice F. B. Fitzpatrick

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons For Judgment

[1] Jason Davidson is charged that on or about the 6th day of May 2012 at the Town of Sioux Lookout he committed a sexual assault on A.K. contrary to section 271 of the Criminal Code of Canada. Mr. Davidson has pleaded not guilty.

[2] At the beginning of trial, there was an order excluding witnesses. There was an order permitting the complainant to testify behind a screen and with the assistance of a support person.

[3] At the beginning of trial, in light of the recent Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, I canvassed with the defence any issues concerning alleged violations of section 11(b) of the Charter. The defence conceded that given the history of this matter there were no 11(b) issues to be considered.

[4] In addition to the testimony of the complainant, the Court heard the evidence of a number of other witnesses. The defence did not call any evidence. The evidence of the complainant and of Carol Maxwell, a sexual assault nurse who examined A.K. on May 8th, 2012, was of consequence to the resolution of the essential question at issue. The expert evidence led by the Crown was equivocal for the reasons I will discuss below. I find that all the other evidence led at this trial was of assistance to the Court to provide background and context to the matter, but was not of direct consequence to the resolution of the essential question at issue.

[5] The evidence of Tara Brutzki (a forensic expert) and J.M. (a lay witness) was entered by way of statements on consent. Ms. Brutzki was admitted by the defence and accepted by the Court as an expert in D.N.A. analysis. Her report was not challenged by the defence. The second consent witness was J.M., a neighbour. The Crown also entered photographs of the exterior and interior of a detached garage through a crime scene officer, Jeff Graham. The garage was at a residential property occupied by the accused, his wife, and two children. The garage is where the assault is alleged to have taken place. Also, the Crown entered transcripts of four statements taken from the accused through an investigating officer, Karl Duewel. The defence conceded the statements were taken voluntarily. The statements evidence co-operation by the accused with the police during their investigation. However, the defence conceded that the statements of the accused were all lies when it came to what had occurred between himself and the complainant. The Crown did not ultimately rely on these statements in argument as part of the theory of its case.

[6] The testimony of the complainant is critical to the determination of this case. I will summarize it now.

[7] A.K. was 48 years old on May 6th, 2012. She was living in Sioux Lookout. She lived on the very same street as Mr. Davidson. He lived in a house at number 54 on the street. At the time, she lived in a walk-up apartment at number 48 on the street. She still lives there. Her mother lives very close to her as well.

[8] A.K. is mentally and physically challenged. No medical evidence was led on this point. However, the fact that A.K. has mental and physical challenges was conceded by the defence. She testified she has “organic brain damage” which affects her behaviour. She attributes this to her premature birth. She has cerebral palsy. She walks with the assistance of a walker for distance and with a cane for confined areas. She experiences social anxiety in a crowd. She lives independently with a support worker who attends her apartment at least three times a week. The worker assists with grocery shopping and banking. Her mother lives very close to her as well. A.K. had a job packing papers and delivering them around Sioux Lookout in May 2012.

[9] On May 6th, 2012, A.K. was married. At the time of the alleged assault, the couple had been married for five years. A.K.’s husband was also a person with a disability.

[10] A.K. had met Mr. Davidson in 2006 as the result of Mr. Davidson having worked with A.K.’s future husband on a concert event in Sioux Lookout. She had seen Mr. Davidson around the neighbourhood over the years but was not friends with him.

[11] This changed in January 2012.

[12] In January 2012, at a time when there was snow on the ground, A.K. testified that Mr. Davidson invited her to come and stack wood for him in his garage. Photos entered into evidence show a woodstove and a wood pile in the garage. Following that time, A.K. continued to visit Mr. Davidson in his garage at least once a week.

[13] I pause here to provide context for what follows in the description of the evidence of the complainant. This trial initially was scheduled to be heard by a jury. A jury was selected on December 8th, 2015. The next morning, before Mr. Davidson had been placed into the hands of the jury, he indicated he wished to make a section 276 application and to elect to be tried by judge alone. Initially the Crown took no position on this application. Given the time of year and the days allocated for the trial, I determined that the application could not be concluded within the time allotted for the trial. In my view, the interests of justice required me to release the jury. I gave oral reasons for that decision at the time. There was a motion for a mistrial. I reserved on that matter. The motion was never referred to again by counsel for either party and this matter continued. I deem the motion for a mistrial to have been abandoned.

[14] The application under section 276 was heard on June 29th, 2016. It was opposed by the Crown. For oral reasons given, the application was allowed. Accordingly, during the trial, testimony concerning the sexual relationship that developed between at least January 2012 and May 2012 between A.K. and Mr. Davidson was led in both chief and cross of the complainant.

[15] Mr. Davidson met with A.K. in his garage on occasions when his wife was not home. Photos of the garage indicate to me that it probably could fit two sedan type cars. However, no cars were parked in the garage at any time material to this trial. The garage could best be colloquially described as a “man cave.” Workout equipment was present. It was heated by a wood stove. It was insulated. There were two chairs in the garage. Also in the garage were a television and a D.V.D. player.

[16] While A.K. and Mr. Davidson were in the garage prior to May 6th, 2012, they had numerous interactions that were sexual in nature. Mr. Davidson would dance for A.K. He would remove all his clothes. He would wave his penis at her. He would “smack his bum in a way that was uncalled for,” according to A.K. He would wear sexy underwear. On some occasions, A.K. would choose what underwear Mr. Davidson would wear. The underwear was kept in a blue Rubbermaid bin in the garage. Police seized the underwear during the course of the investigation and photos of it were entered into evidence. Certain pieces were subjected to D.N.A. testing by Ms. Brutzki. No semen samples were found on the underwear but Mr. Davidson’s D.N.A. was found on five pairs of black thong underwear. There was a large number of pairs of underwear in the blue Rubbermaid bin. They were mostly women’s thongs.

[17] A.K. and Mr. Davidson would watch pornographic movies together. The movies depicted oral sex, vaginal penetration, and “the bum part” (A.K.’s description).

[18] Mr. Davidson did something sexual to a purple exercise ball which was very amusing to A.K. The ball was depicted in a few of the photographs entered at trial.

[19] A.K. masturbated Mr. Davidson. Mr. Davidson ejaculated on A.K. On one occasion, A.K. attempted to perform oral sex on him. It did not work out.

[20] On these occasions of sexual interaction, only A.K. and Mr. Davidson were present in the garage. In chief, A.K. testified that for all these occasions of sexual contact she did not want to participate, but she did. She testified very clearly and over and over that she did not want to do it. But equally in cross-examination, she testified she did not know why she did it anyway. She was embarrassed. She did not tell her husband. She did not tell Mr. Davidson’s wife. She testified she was afraid it would sabotage Mr. Davidson’s marriage.

[21] She did, however, tell her support worker about what she was doing with Mr. Davidson at some time prior to May 6th, 2012. The exact date was not clear in the evidence. The worker was shocked but did not give her any advice about what to do about it.

[22] During the occasions of sexual activity prior to May 6th, A.K. testified that she did not protest to Mr. Davidson about what was going on. She did not tell him to stop it. She did not tell him she was annoyed or mad about what he was doing. She was not threatened by him. No one threatened her. He did not say he was going to tell anybody about what they were doing. She was not forced to do it by him. She did not say it was offensive. No one forced her to go to his garage. She was trying to keep it a secret. She did not say she did, or did not, like the sexy underwear he was wearing. However, she testified that in fact she had a favourite pair for Mr. Davidson to wear. A black pair with the words “Canada” written on the front in red sequins. A photo of these was entered as Exhibit 3.38.

[23] As far as the acts of masturbation go, Mr. Davidson did not grab or move her hand to commit the act. A.K. reached out to do it. In cross-examination, A.K. admitted that Mr. Davidson was “a bit sexy.”

The Events of May 6th, 2012

[24] A.K. went to Mr. Davidson’s garage in the afternoon. It was a Sunday. A.K. was helping Mr. Davidson put Christmas decorations up into an attic in the garage. She was holding a ladder for him.

[25] After that task was completed, the couple started watching a pornographic D.V.D. on the television. A.K. walked up to a counter located on a side of the garage. The counter had two white drawers under it with green leaves painted on them. The placement of the counter and the television are shown in Exhibit 3.15 and 3.7.

[26] Mr. Davidson came up behind her. He slowly removed her jeans. He slowly removed her underwear down to her knees. She then described in chief that he began to “hump me in the bum part” which hurt her. She did not know how long it went on. According to her, Mr. Davidson said “my cock is getting hard.” She did not look back while this was occurring. She admitted in cross-examination that she did not say anything while this was occurring.

[27] Mr. Davidson did not ask her if he could perform anal sex with her. A.K. testified she did not verbally consent to him performing anal sex. She testified in chief that she did not consent to him doing that. She was not expecting him to do that. When cross-examined, she was asked if she could have kicked him while he was doing this. She agreed she could have but did not do so.

[28] He then pulled his penis out of her bottom. She was not sure if he had ejaculated or not. She then turned around to face Mr. Davidson. He was wearing boxer shorts. She could see his erect penis outlined inside his red and black striped boxer shorts.

[29] She testified she did not tell him to stop the sexual activity at that point. She did not leave. She continued with another sexual act. She directed Mr. Davidson to put on her favourite pair of sexy underwear, the black Canada ones. She then masturbated Mr. Davidson to the point where he ejaculated.

[30] In cross-examination, A.K. agreed that she masturbated Mr. Davidson in order to please him. She said she did the oral sex act to try and please him. And she agreed she did the anal sex with Mr. Davidson on May 6th, 2012 in order to please him.

[31] After she finished masturbating Mr. Davidson, A.K. testified she got mad and left the garage. She went home. She washed the clothes she had on. Her testimony varied on whether or not there was any blood in her underwear after the encounter with Mr. Davidson. Her testimony varied on whether or not her husband was home when she came home. Her testimony varied on what she did when she came home. She testified that she laid down on her bed for the rest of the afternoon. She also testified she sat down to do a jigsaw puzzle.

[32] She testified she did see blood on toilet paper after having a bowel movement some time shortly after the May 6th encounter with Mr. Davidson.

[33] On May 8th, 2012, A.K. confided to a friend, Ms. Mesick, that she had been sexually assaulted by Mr. Davidson. By coincidence, Ms. Mesick was a sexual assault nurse. She saw to it that A.K. went to the Sioux Lookout hospital as soon as possible. At around 4 p.m. that day, A.K. was examined by Carol Maxwell. She testified at trial. She noted in her examinations there were two small abrasions in the area of A.K.’s anus. She noted them as occurring at 1 o’clock and 3 o’clock. A diagram made by Ms. Maxwell was entered into evidence. No blood was observed on A.K.’s anus. No internal examination was performed by Ms. Maxwell or any physicians at the hospital as there was no evidence of bleeding. Ms. Maxwell did not offer an opinion as to the cause of the abrasions.

[34] A.K. admitted when she first talked to the police about what had happened she did not say anything about the prior sexual activities she had engaged in with Mr. Davidson. She did not say anything about what she did immediately afterward with Mr. Davidson. She explained that she was embarrassed about her relationship with Mr. Davidson.

Position of the Crown

[35] The Crown argued that the issue in this matter is narrowly defined. The determination of the guilt or innocence of Mr. Davidson turns on whether or not the Crown has proven beyond a reasonable doubt the absence of consent on the part of A.K. to Mr. Davidson committing an act of anal intercourse with her.

[36] The Crown was not seeking to have a finding of guilt made against Mr. Davidson in respect of the act of masturbation that occurred after the alleged act of anal intercourse. The Crown concedes in light of the ruling on the section 276 application, that evidence of the prior sexual history between the parties is relevant to provide context to the events of May 6th. The Crown points out the impermissible uses of this evidence mandated by section 276(1) and (2).

[37] The Crown points to the obvious fact that we only have A.K.’s evidence to consider as to what occurred. Despite A.K’s diminished mental capacity, the Crown concedes she was well and legally capable of giving consent to sexual touching on May 6th, 2012. The Crown does not argue that the provisions of section 273.1(2)(b) apply in this matter. Also, it is clear that the balance of the provisions in that section would not be of assistance to the Court given the facts in this matter.

[38] The Crown argues the only evidence that the act at issue in fact occurred is that of A.K. The Crown argues it has proven beyond a reasonable doubt the sexual touching element of the offence. It argues that A.K. was both a reliable and credible witness understanding how she receives and gives information.

[39] With respect to consent, the Crown argues it has proven the absence of consent based on the following facts. A.K. was not asked to perform the act. She was not told Mr. Davidson was about to do it. A.K. did not tell him she consented to it. She was given no opportunity to choose if she wanted to do it. Further, she testified that in her mind, she did not want to do it. The Crown therefore argues it has proven beyond a reasonable doubt that there was an absence of consent on A.K.’s part to the sexual touching.

Position of the Defence

[40] The defence argues that A.K. deliberately misled police, to the extent of withholding critical information, when she was interviewed about what happened between herself and Mr. Davidson. This is fundamental to an assessment of the reliability and credibility of A.K. The defence submits there is reasonable doubt that the act occurred. Further, the defence submits there is a reasonable doubt as to the issue of consent.

[41] According to the defence, A.K. is an “unreliable historian.” There were a number of inconsistencies in her testimony about what occurred during the event at issue. The description she gave in chief was very different than what she described in cross-examination. She left out in chief the events she did immediately after the act for which Mr. Davidson stands accused. According to the defence, this calls into question whether or not the event actually occurred.

[42] She was very clear in chief there was blood in her underwear following the event. She was not so clear about this in cross-examination because she admitted she did not tell the nurse who examined her or Ms. Mesick about this. The expert evidence that was given on consent by the Crown did not indicate there was any blood on the articles of clothing, jeans, or underwear submitted by A.K.

[43] The defence very strongly argues there is no lesser standard of proof because the main evidence against Mr. Davidson comes from a person with a mental disability. The Crown concedes A.K. was very capable of giving consent. However, according to her evidence in chief, every sexual encounter was non-consensual. She did not want to watch the pornography, she did not want to watch him dance, she did not want to masturbate him, she did not want to perform oral sex with him, and she did not want to have the anal sex at issue. And yet she kept coming back to his garage to do these things. This, according to the defence, makes no sense at all.

[44] The defence points out that Mr. Davidson was not in a position of trust with regard to A.K. Accordingly, the provisions of section 273.1 do not apply to this matter.

[45] The defence pointed to a particular exchange during cross-examination. A.K. was asked about something Mr. Davidson did with a purple exercise ball in the garage. She began to giggle and was visibly flushed. The defence argues this demonstrates A.K. was excited about her relationship with Mr. Davidson and that is why she kept going back to the garage. The defence relied on the interchange where, very carefully during cross-examination, A.K. was asked about certain acts she had done with Mr. Davidson. She was asked about the masturbation. She testified she did not want to do it but she did it to please him. She was asked about the one time act of attempting to perform oral sex on Mr. Davidson. She testified she did not want to do it but she did it to please him. She was also specifically asked about the act of anal sex at issue in this trial. She testified she did not want to do it but she did it to please him.

[46] The defence argues the answers A.K. gave to these very pointed questions in cross-examination are definitive evidence that A.K. did in fact consent to the act which is the subject matter of the charge before the Court. A.K. was having an affair with Mr. Davidson. It was an established consensual sexual relationship between two adults which both were keeping secret from others. There is no evidence of threats, no attempt by Mr. Davidson to stop A.K. from talking about it, and no violence perpetrated by Mr. Davidson on A.K.

[47] Although the Crown did not rely on Mr. Davidson’s admitted untruthful statements to the police (“lies” as candidly characterized by defence counsel) the defence points to the evidence given by police officers that Mr. Davidson was involved in a relationship with his own wife that had been volatile in the past. He had good reason to conceal his relationship with A.K. from his wife and the police, not because he was guilty of any criminal charge, but because he too was embarrassed about his affair with A.K.

[48] The defence argues that at best the pattern of this relationship was such that A.K. had a sexual encounter with Mr. Davidson, did not enjoy it, and then regretted it later. This sequence of events does not vitiate the consent to the act that A.K. gave at the time. As A.K. testified, “she did it to please him.” The defence argues this is clear evidence of consent. The defence submits A.K. consented to a pattern of sexual activity over a very lengthy period of time. As such, the benefit of the doubt goes to Mr. Davidson in this case. The defence argues the evidence submitted in this case falls far short of proof beyond a reasonable doubt. The evidence makes it impossible with any acceptable degree of certainty or comfort to determine what is true or what is false concerning the issue of consent by A.K. on May 6th, 2012. As such, the defence submits that Mr. Davidson is entitled to an acquittal.

The Law

[49] I agree with the submissions of counsel that the issue of consent and therefore the law regarding consent in the context of a charge of sexual assault is paramount in this matter. I was provided with several authorities by counsel that speak to this issue. In particular, I have been guided by the decisions of the Supreme Court of Canada in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346 and R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440. Both decisions contained discussions on the framework of the sexual assault law in Canada and how the court is to deal with the issue of consent. Several very clear principles are established by these cases and the jurisprudence on which they rely.

[50] The plain words of the sexual assault provisions under which Mr. Davidson stands charged, when read in their ordinary and natural sense, support a narrow interpretation of the basic definition of consent as set out in section 273.1(1). The ordinary meaning of the “sexual activity in question” is the physical act agreed to; there is nothing in the wording to suggest that it includes the conditions or qualifications of the sexual act (para. 24 Hutchinson, supra). A person must agree to a specific physical act. Agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to touching of one part of the body is not agreement to all sexual touching (para. 54 Hutchinson, supra). At the first stage of the consent analysis, the Crown must prove a subjective voluntary agreement to the specific sexual act.

[51] A conviction for sexual assault under section 271(1) 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 his or 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 (para. 23 J.A., supra). A person has the mental state of the offence if he or she knew that the complainant was not consenting to the sexual act in question or was reckless or willfully blind to the absence of consent (para. 24 J.A., supra). In this matter the accused is not raising the defence of honest but mistaken belief in consent. Relying on the decision in R. v. Ewanchuk, [1999] 1 S.C.R. 330, the Supreme Court in J.A. held that a trier of fact must determine what was going on in the mind of the complainant in response to the touching. The complainant is not required to express a lack of consent. The only relevant time for the complainant’s consent is while the touching is occurring. The complainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but then changes her mind. Conversely the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact. There is no implied consent to sexual assault (J.A. paras. 45, 46, and 47).

[52] The law has long recognized there are limits on how completely it may fulfill its objectives through the blunt instrument of criminal law. Restraint is a key watch word. A line is drawn between activity requiring the harsh sanction that the criminal law provides and conduct that while undesirable or unethical lacks a reprehensible character of the criminal act (para. 18 Hutchinson, supra).

[53] Counsel for the defence referred me to the decision of the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320. In paragraph 36 of that decision the Court set out what should be included in any instruction to a jury about the meaning of “beyond a reasonable doubt.” In that paragraph, in bullet form, Cory J. stated:

• the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
• the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
• a reasonable doubt is not a doubt based upon sympathy or prejudice;
• rather, it is based upon reason and common sense;
• it is logically connected to the evidence or absence of evidence;
• it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
• more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guilty must acquit.

Analysis

[54] After considering all the evidence and the arguments of the parties in this matter, I am left in a reasonable doubt about whether the Crown has proven the absence of consent to the assault for which Mr. Davidson is charged. I am concerned about the reliability of A.K.’s statements concerning her state of mind at the time the anal assault occurred for a number of reasons. First, I am concerned about the credibility of her evidence concerning her state of mind during the act. I am alive to the fact that the law does not require a complainant not to express her lack of consent in order for there to be a finding that there was an absence of consent. With regard to the act of anal intercourse complained of, A.K. testified she did not say anything immediately before, during, or after the time Mr. Davidson was performing the act. Also, she was passive while he performed the act.

[55] I am also alive to the fact that the law requires that the only question for the determination of the actus reus of the offence for which Mr. Davidson is charged is whether the complainant subjectively consented in her mind (J.A. para. 37, supra). A.K. clearly testified in chief that in her mind she did not consent to the act at issue. However, I must consider this statement in the context of the totality of the evidence to consider if in fact the absence of consent has been proven beyond a reasonable doubt.

[56] Based on A.K.’s testimony of all the various times she attended at Mr. Davidson’s garage, and what she said both she and Mr. Davidson did while the two of them were there, I find that A.K. and Mr. Davidson were having an established consensual sexual relationship prior to May 6th, 2012. In particular, I rely on her evidence that she was not threatened, she was not coerced, there was no evidence that she was forced to do the sexual acts referred to in the evidence, and they happened on a number of occasions. Despite her developmental challenges, she was an adult and the Crown conceded she was capable of consenting to sexual acts with another consenting adult.

[57] Her credibility concerning her state of mind is called into question by the fact that she repeatedly testified that she did not want to do all of the sexual acts she did with Mr. Davidson, including the act at issue. However, this must be considered in the context of her testimony that she admitted she did continue to go back and do the sexual acts. She also admitted in cross-examination she did the acts, including the act at issue, to please Mr. Davidson. While she said she was embarrassed about all of it, she admitted she went back to the garage again and again to be with Mr. Davidson. Her evidence concerning the purple ball indicates that she did enjoy the relationship with Mr. Davidson to a certain extent despite her blanket denials that she did not consent to any sexual act with Mr. Davidson. Her evidence that she did all of the things to please Mr. Davidson is also evidence which to my mind raises a doubt about her evidence that she did not consent to the act in question.

[58] If a person in an established consensual sexual relationship does something sexually and they say they wanted to please their partner by doing that act, common sense tells me to look very carefully at evidence to the contrary that says at the very same time they did not consent to that particular act. This kind of contradiction raises concerns about credibility.

[59] In terms of the context in which to assess the credibility of the statement by A.K. that she did not consent, I am also confronted with the evidence of what she did immediately after the act of anal intercourse. She first asked him to put on a pair of sexy underwear of her choosing. Then she engaged in another act of sexual touching, one that had been done between the two of them often. This was not done under a threat of violence. There was no evidence of coercion, and there was no evidence that A.K. was being prevented from leaving. The actions are arguably inconsistent with an occasion where consent was lacking. In my view, the evidence of the circumstances immediately after the act complained of also raises a reasonable doubt about the proof of the absence of consent.

[60] Also, I am persuaded by the defence argument about how much credibility I should give A.K.’s statements concerning consent because she deliberately withheld information from the police. Information about what was going on between her and Mr. Davidson was clearly relevant for investigators to assess the situation. A.K. withheld this evidence from police. This raises doubt for me about her credibility with regards to consent to the act at issue.

[61] I am sure Mr. Davidson did touch A.K. with his penis in her anal area on May 6th, 2012. The abrasions witnessed by Carol Maxwell on May 8th, 2012 are independent evidence sufficient to establish that fact in my view. A.K. was uncertain as to the length of time the act of touching went on. I do not know what to do about the fact that she testified that when she turned around A.K. still had his boxers on. Despite the fact that she testified she did not consent to his actions, she immediately continued to engage in activities of a sexual nature with Mr. Davidson.

[62] From A.K.’s testimony, I believe the act occurred in the manner A.K. described it. The fact that A.K. waited two days to tell anyone about it had no bearing on my findings concerning the issue of consent. However, I am left in a reasonable doubt about whether or not A.K. consented to the action.

[63] The expert evidence lead by the Crown was equivocal. There was no blood or semen evidence found on the clothing worn by A.K. during the assault. The expert report indicated that there was no fecal evidence found on towels collected from the garage. There was no blood evidence found on the underwear which A.K. identified as being worn by Mr. Davidson. While Mr. Davidson’s D.N.A. was found on the underwear items examined, A.K.’s D.N.A. was not. The Crown made no reference to this evidence during argument. Accordingly, the Crown expert evidence was not helpful one way or the other regarding my decision.

[64] Clearly what Mr. Davidson was doing in his relationship with A.K. was ill advised. However Mr. Davidson and A.K. are adults. It is not criminal for adults to do sexual things if both parties consent. In this case, I am left with a reasonable doubt about whether A.K. did or did not consent to this act.

[65] This is one of the most difficult cases I have had to decide. This is because there are aspects to this case that are awkward and uncomfortable, Also, the facts of this case are embarrassing and some would argue indicate a situation that was morally wrong. Yet, I find based on the evidence A.K. gave, and most importantly her indication that she did the act to please him, I am left in reasonable doubt about her assertion that she did not consent to the act at the time. Two days later she decided to tell her friend, who happened to be a sexual assault nurse, about the incident. Ms. Mesick acted as she should and sought help for A.K. But A.K. neglected to tell her friend, and the sexual assault nurse who examined her, and most importantly the police about the parts she did enjoy during her time with Mr. Davidson on May 6th and prior to that date. This too raises concerns about her credibility on the issue of consent.

[66] The decision of R. v. J.A. noted above at paragraph 62 indicates that if a complainant consents to sexual activity while it is taking place but later decides that she should not have, the accused should be acquitted on the actus reus of the offence. In other words, after the fact remorse does not vitiate consent at the time of the act at issue. During cross-examination, the defence was able to elicit evidence from A.K. about why she was doing what she was doing with Mr. Davidson. In particular, the testimony from A.K. that she did it to please him raises a reasonable doubt in my mind about her evidence of non-consent.

[67] A.K. and Mr. Davidson are adults. A.K. was and is entitled to consent to sexual activity. Based on all the evidence, I cannot say for certain on this occasion if she did or did not consent‎ to the act of Mr. Davidson touching her in her anal area with his penis. I am duty bound to convict only upon being satisfied of Crown proof of all aspects of the matters with which Mr. Davidson is charged. On the issue of consent, I find the Crown has not proven beyond a reasonable doubt that A.K. did not consent to the act of sexual touching that I found Mr. Davidson committed. Accordingly, on the charge that on or about May 6th, 2012, Jason Davidson committed a sexual assault on A.K. contrary to section 271 of the Criminal Code, I find Jason Davidson not guilty.

[68] This case was handled by both the Crown and the defence with the utmost professional courtesy and respect for the witnesses and, in particular, the complainant. The Court thanks counsel.

The Hon. Mr. Justice F.B. Fitzpatrick

Released: January 09, 2017

COURT FILE NO.: CR-13-0006 DATE: 2017-01-09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty The Queen - and - Jason Davidson Accused REASONS FOR JUDGMENT Fitzpatrick J. Released: January 09, 2017 /sab