Court File and Parties

Court File No.: 1892/16 Date: 2017-01-13 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: K.D.R., Defendant

Counsel: M. Nancekievill, for the Crown S. Donohue, for the Defendant

Heard: December 5 and 6, 2016

Justice: R. Raikes

Reasons for Judgment

[1] This matter involves a charge of sexual assault. A non-publication ban was made at trial pursuant to s. 486.4 of the Criminal Code. Consistent with that ban, I will refer to the complainant in these reasons by the initial “C” (not one of her initials) to protect her identity.

[2] The defendant, K.D.R., stands charged with sexual assault of C contrary to s. 271 of the Criminal Code. The sexual assault is alleged to have occurred between December 1 and 31, 2014 in the City of Sarnia.

[3] It is undisputed that sexual touching of C by the defendant occurred in his apartment at E[…] Street in Sarnia on December 4 or 5, 2014. The issue here is whether that sexual touching was consensual or not, and whether the defendant had an honest but mistaken belief that C was consenting.

Law

[4] S. 271 of the Criminal Code makes it an offence to sexually assault another person. S. 265(1) defines sexual 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.

[5] 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.”

[6] 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.”

[7] I reiterate that there is no issue that sexual touching occurred in this case.

[8] 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”.

[9] 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.”

[10] 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.

[11] 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.”

[12] 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.”

[13] 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.

[14] 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.

[15] In this case, C testified that she made it known to Mr. K.D.R. that she did not wish to engage in the sexual activity and continued to protest against that activity throughout; viz. she did not consent to any of the sexual touching. Mr. K.D.R. testified that he asked her if she wished to have sex and she indicated by words and her conduct that she was a willing participant; at no point did she express otherwise.

[16] It is important to bear in mind and apply the fundamental principles essential to every criminal trial: the presumption of innocence and the burden of proof on the Crown.

[17] 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 a sexual assault trial, that burden never shifts. The defendant need not prove his innocence.

[18] 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.”

[19] 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.”

[20] 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.”

[21] 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.

[22] I turn now to the evidence.

Evidence

[23] The evidence of Mr. K.D.R. and C was largely consistent as it relates to their past relationship. They met and began dating in high school. Mr. K.D.R. lived with C and her family for approximately six months to a year shortly after the death of his father. Mr. K.D.R. and C were in a boyfriend/girlfriend relationship for roughly three years. They broke up in June or July, 2014.

[24] They did not speak or communicate with each other for approximately two weeks after the break-up. After the initial period of silence, they resumed communication, usually by text or social media. They also got together face-to-face on two or three occasions. Between their break-up and the date of the alleged assault in early December 2014, they discussed more than once whether they could move past the issues that caused them to break-up in the first place, and whether they would get back together. These efforts usually quickly degenerated into arguments between them.

[25] I now come to the fork in the road where the evidence of Mr. K.D.R. and that of C diverge. I will outline Mr. K.D.R.’s version first, then set out C’s version of what led to and transpired in Mr. K.D.R.’s apartment which gives rise to the charge before me.

Defendant’s Version

[26] In early December, 2014, Mr. K.D.R. invited C to come to his apartment. He testified that he was hopeful that they could patch things up. He denied that he tidied up his bedroom or that he had candles lit in that room before C arrived.

[27] It is undisputed that C’s mother drove her to Mr. K.D.R.’s apartment. Mr. K.D.R. testified that he occupied a one bedroom apartment on the third floor of the building. None of the witnesses had a clear recollection of how C got into the building, whether he came down to the front door to let her in or someone else let her in or her mother had a key to that door. In any event, both Mr. K.D.R. and C knew that C’s mother was returning shortly to pick her up.

[28] Mr. K.D.R. testified that: a. They sat on his sectional couch after they got into his apartment. The television was on; b. They spent a brief time talking about their relationship and began kissing; c. He asked her if she wished to have sex. She agreed; d. They walked around the couch hand in hand to his bedroom; e. Once in the bedroom, he took off her pants and underwear and gave her oral sex on the bed; f. She reciprocated by taking off his pants and performing fellatio on him; g. They then engaged in vaginal intercourse; h. At no time did she say no or express to him that she did not wish to engage in any of their sexual activity. He believed that they mutually agreed to have sex. By her moans of pleasure and conduct, she appeared to be enjoying their encounter; and i. He specifically denied that she was pushing him away and telling him to stop.

[29] He indicated that they heard a knock at the door to his apartment. He jumped out of bed and threw on a pair of shorts. He left the bedroom and answered the door. It was C’s mother. He was red faced and smiling. She asked him what was up to which he replied “nothing”. The three of them sat on his couch talking for 15-20 minutes until C and her mother left. C was not crying at any point.

[30] According to Mr. K.D.R., when C came to his apartment, he was unaware that C was seeing a mutual acquaintance, S., and he only learned of C’s relationship with S. after their sexual encounter. He testified that he communicated to his close circle of confidantes that he and C had just had sex and he thought they were getting back together. Mr. K.D.R. then learned from his brother that C had a second Facebook account which he checked. It said she was in a relationship with S.. He indicated that he was very upset and angry when he found out. He felt that C cheated on S. with him.

[31] Mr. K.D.R. was arrested in July, 2015. He gave a video statement to police in which he repeatedly asserted that their sexual encounter was consensual.

C’s Version

[32] C’s version of events stands in stark contrast to Mr. K.D.R.’s story.

[33] As of December 4 or 5, 2014, C was dating S.. She testified that she accepted Mr. K.D.R.’s invitation to meet at his apartment only because she wanted to get him to stop saying negative things about her on social media to their circle of friends. He was telling mutual acquaintances that she was on drugs. He told her he would stop doing that if she came to see him.

[34] She testified that: a. When Mr. K.D.R. invited her to come over, he asked her if he could set up something romantic. She said no, that she was seeing someone else and just wanted to clear things up; b. When she entered his apartment, they sat on his couch in the living room; c. Very soon after they sat down, he began trying to kiss her. She told him to stop, that she did not want to kiss him. She told him she was in a relationship with S.. He ignored her wishes; d. He picked her up as one would a child; viz. holding her legs with one arm while the other arm pressed her chest against him; e. He carried her into the bedroom in this fashion; f. He put her down onto the bed; g. The bedroom was uncharacteristically neat and there were candles lit; h. He pulled her pants and underwear off; i. He started to try to have oral sex with her but she was pushing his head away; j. He then vaginally penetrated her vagina with his penis; k. Throughout the assault, she told him no, to stop, that she did not wish to do this and was pushing against his chest and arms to get free; l. He stopped when they heard a knock at the door which turned out to be her mother; m. He quickly put on his pants and shirt and went to answer the door; n. She then put on her clothes. She was crying but stopped before she exited the room; o. She came out of the bedroom and left within a couple of minutes with her mother.

[35] According to C, all of the sexual activity was non-consensual. She denied the defendant’s version when put to her.

Additional Evidence

[36] C is 5’6” tall and weighed perhaps 88-90 lbs. at the date of the alleged assault. The defendant is 5’11” tall and weighed roughly 185 lbs. at that time.

[37] Both C and Mr. K.D.R. testified that Mr. K.D.R. owned a Doberman who was sitting on the couch at the time Mr. K.D.R. was kissing C. She described the dog as “hyper”. C admitted in cross-examination that in the past, the dog would attack or get involved any time there was a commotion. The dog did nothing on this occasion.

[38] The first mention of Mr. K.D.R.’s dog came out in cross-examination of C.

[39] Exhibit 1 is a series of messages from Mr. K.D.R. to C via Kik, a social media service. C testified that she received these messages the day after the alleged assault in Mr. K.D.R.’s apartment.

[40] Mr. K.D.R. admits that he sent these messages although he cannot be sure when he sent them because no date and time is indicated on Exhibit 1. C explained that she took a screen shot of these messages. She could not and did not provide police with any messages immediately preceding or immediately after these messages were received that would provide temporal context as her phone broke. In cross-examination, C denied that she did any editing or that the various messages came at different dates and times.

[41] In exhibit 1, Mr. K.D.R. wrote: o “sorry if you feel I pushed that on you. o But I’m fine o we will just chill chill from now on nothing else ever again ok no worries o have a good day and sorry about last night I didn’t mean for any of that to happen I’m an idiot. That was my fault. o I do get it o your dating him o you’ll see how sorry I am for raping you o and pushing everything on you hurting you and making you not want me”

[42] Mr. K.D.R. testified in his examination in-chief that he could not recall when these messages were sent or if they were sent all on the same date. He suggested that it would have been on one of two occasions: either after he found out she had a boyfriend (S.) in which case he was trying to make her feel guilty for sleeping with him while she was dating S., or after her boyfriend (C.) came into the gas station at which Mr. K.D.R. was working with a billy club accusing him of raping C. If it was the latter instance, his message about being sorry for raping her was meant to be sarcasm.

[43] In April, 2015, Mr. K.D.R. was attacked while at work by C’s new boyfriend, C.. Mr. K.D.R.’s arm was broken. Police were called. It took some time but eventually, C. was found and criminally charged.

[44] In July, 2015, while the charge was pending against C., C testified that she went before a Justice of the Peace to get an order to restrain Mr. K.D.R. from any contact with her. She was referred to Sarnia Police where she recounted to police for the first time the alleged sexual assault in Mr. K.D.R.’s apartment the preceding December. She denied that she went to police and made the accusation against Mr. K.D.R. to help C.’s case.

[45] Other exhibits tendered at trial reveal that between early December and April, 2015, the parties continued to communicate with one another via social media. Those messages reveal that: a. C contacted Mr. K.D.R. to let him know that she had a sexually transmitted infection which she believed originated with him; b. some of his messages to her were aggressive and laden with insults; c. she indicated to him that she did not consider him to be a monster; d. she was not scared of him; and e. she assured him that she talked with him more than most of her friends.

Analysis

[46] There were only two people in the apartment when the sexual activity occurred. They tell very different stories of what happened. Even the extent of the sexual activity differs with Mr. K.D.R. asserting that both performed oral sex on the other which C denies.

[47] Although C’s mother testified, her evidence was unhelpful. She placed the date that she attended at the apartment and saw C crying as sometime in October, 2014, not December. C said nothing to her of the alleged sexual assault and C’s mother continued to speak to Mr. K.D.R. when she saw him in 2015. C was at Mr. K.D.R.’s apartment more than once after they broke up and before December, 2014. As C did not drive, she relied on her mother for transportation. In short, I am not satisfied that the mother’s evidence pertains to the same date as the incident that gives rise to this charge.

[48] I now ask myself whether I believe Mr. K.D.R.’s story or whether it raises a reasonable doubt. I do not and it does not.

[49] I do not believe the defendant’s version of what happened, nor does his evidence raise a reasonable doubt. Simply put, I do not accept that he honestly related the events that occurred.

[50] In coming to this conclusion, I am troubled by the messages sent to C in which he apologized for raping her, that he pushed himself on her. His explanation for those messages defies logic and common sense. He indicated in those messages that he was “sorry about last night” which makes no sense if he sent them after C. assaulted him.

[51] Mr. K.D.R. acknowledged in his evidence in-chief that these messages were within the “kind of stupidity” that he would do sometimes. His “stupidity”, if it was merely that, undermines his credibility when he tries to paint a picture of a consensual sexual encounter as part of a blissful reconciliation.

[52] Those messages further evidence that C must have told him that she was in a relationship, something he denied being aware of until later when alerted to her other Facebook account by his brother. He wrote: “I get it Your dating him”. He testified that that information made him angry. These messages are at odds with his stated ignorance that she was seeing someone else and seem more contrite than angry.

[53] Exhibit 4, Tab 2 contains social media messages between Mr. K.D.R. and his brother and another friend in which he asserted to them that he was unaware that she was dating anyone, and that he was kissing her and “fucked her” yesterday. He relies on those messages to suggest that he was entirely ignorant of her new relationship until after their sexual encounter. If the messages in Exhibit 1 were sent to C the day after the assault as she testified, his messages with his brother and friend are disingenuous. At a minimum, they reveal a lack of maturity and poor judgment.

[54] I must now consider whether on the evidence as a whole, I am satisfied that the Crown has proven beyond a reasonable doubt each of the essential elements of the offence.

[55] The defendant asserts that the evidence of C is not reliable and must be discounted; that at a minimum, the evidence fails to rise to the level necessary to find proof beyond a reasonable doubt.

[56] The defendant points to the following: a. If, as she testified, the defendant’s dog always attacked if there was any kind of commotion, why didn’t the dog do so when she says she was saying no and pushing away from the defendant while on the couch beside the dog? b. She testified in-chief that she had no other communications with Mr. K.D.R. after the sexual assault. He would send her messages that she would ignore. Exhibit 4, Tabs 3-5 contain, inter alia, several messages by her to him after the sexual assault; c. She testified in-chief that there were no other communications between them post-assault except messaging, yet in her message on March 9, 2015 at 10:52 PM she wrote: “I don’t know it’s not really like I avoid talking to you I talk to you more then most of my friends tbh”. “Tbh” is short for “to be honest”; d. Exhibit 1, the most damning evidence against Mr. K.D.R., has no date or time markings. Her excuse that her phone broke is entirely convenient and masks that these remarks were taken out of context or edited; e. C’s messages to Mr. K.D.R. post-assault are inconsistent with communications that one would expect a victim to have with her rapist.

[57] On its own and without more, I would not attach any particular weight to the disposition and inaction of the dog while they were on the couch. There could be a myriad of reasons why the dog did not respond to what was going on.

[58] I am troubled by the inconsistencies in her evidence with respect to the fact and extent of their subsequent communications. She qualified her statement that she had no communications with him and ignored his messages by saying in chief that she did not recall any such messages. Nevertheless, the clear import of her answers was that following the assault, she had little, if any, communication with Mr. K.D.R.; if he initiated communication, she did not respond.

[59] Her messages to Mr. K.D.R. after the sexual assault are at odds with her evidence that she ignored him and there were no communications by her to him. Further, those emails, particularly the March 9, 2015 email just referred to, evidence ongoing communication that was more than mere messaging. Even if she meant “messaging” when she said that she “talked to” him more than her friends, it is a significant inconsistency with what she testified to and implied by her answers in-chief.

[60] Further, C’s testimony that she had only a picture of the damning messages in Exhibit 1 because her phone broke; that those messages came the day after the assault with no date or times showing; that those messages came consecutively with no editing; and were only brought to light with police after her boyfriend was charged with assaulting the accused strikes me as doubtful.

[61] I am mindful that the standard of proof required of the Crown is beyond a reasonable doubt. It is not enough for me to be able to say that C probably did not consent to the sexual touching. I must be satisfied of her subjective intention at the time of the sexual activity for each of the sexual acts engaged in beyond a reasonable doubt. That finding rests in large measure on the credibility and reliability of C’s evidence.

[62] In this case, I am not satisfied beyond a reasonable doubt that the sexual touching that occurred in Mr. K.D.R.’s apartment on December 4 or 5, 2014 was non-consensual. In short, the significant inconsistencies in C’s evidence cast doubt on the reliability and credibility of her evidence. The Kik messages sent by the defendant are not enough to remedy that doubt.

[63] I am left in a position where I simply do not know what happened and whether C did not consent to their sexual activity. In those circumstances, I must acquit.

Released: January 13, 2017 “Original Signed by R. Raikes” Justice R. Raikes