Her Majesty the Queen v. A.B.A., 2018 ONSC 2198

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.B.A.

Defendant

C. Heron, for the Crown

L. Afolabi, for the defendant

HEARD: March 20-22, 2018

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information

that may identify the person described in this judgment as the complainant may

not be published, broadcasted or transmitted in any manner. This judgment

complies with this restriction so that it can be published.

REASONS FOR JUDGMENT

Justice A. k. MITCHELL (Orally)

Introduction

1A.B.A. was charged with one count of sexual assault contrary to s. 271 of the Criminal Code of Canada with respect to each of his former spouse (J.B.) and his former sister-in-law (S.B.). The complainants are sisters. The charges arise out of events which occurred during the period August 1 through 8, 2015. The identity of the complainants is protected by a publication ban and so will be referred to in these reasons as J.B. with respect to the complainant in count 1 and S.B. with respect to the complainant in count 2.

2During the first day of trial, the court received the evidence of S.B. At the opening of the second day of trial, the Crown closed its case. The defendant brought an application for non-suit with respect to count 1 on the indictment. The application was granted and a finding of not-guilty was entered on the indictment with respect to count 1. The trial proceeded with respect only to count 2.

The Elements of Sexual Assault

3To find Mr. A.B.A. guilty of sexual assault, Crown counsel must prove the following essential elements beyond a reasonable doubt:

(i) that Mr. A.B.A. intentionally applied force of a sexual nature to S.B.;

(ii) that S.B. did not consent to the force that Mr. A.B.A. applied; and

(iii) that Mr. A.B.A. knew that S.B. did not consent to the force that he applied.

4Mr. A.B.A. admits to the first element of the offence namely that he applied force of a sexual nature to S.B. He does not deny that the sexual activity described by S.B. took place. Rather he claims that S.B. consented to all of the sexual activity which took place between them on August 1st and 2nd, 2015 and on August 6, 2015.

Overview of the Incidents

(i) The First Incident

6At the time of these incidents of sexual contact, the accused and the complainant were well-known to each other having known each other for approximately 10-15 years. Aside from the incidents occurring in August, 2015, the accused and S.B. had no previous sexual contact, save and except that flirtatious and suggestive text messages had been exchanged between them earlier in the summer of 2015. By the time of trial, these text messages had long been deleted. The complainant says she deleted the messages from her cell phone just prior to the first incident on August 1, 2015.

7On August 1, 2015, the defendant was having marital problems with his spouse, the complainant’s sister, and had moved out of the matrimonial home approximately a week prior and was “couch surfing” with friends. Earlier on August 1st, Mr. A.B.A. had texted the complainant asking if he could come to her apartment. S.B. obliged and the defendant arrived at approximately 1:00 pm. He brought take-out food and a duffel bag containing clothes and toiletries intending to stay the night.

8After he finished eating, the defendant took a short nap and when he woke advised S.B. that he had a sore back and asked her to “walk on his back” to relieve the pain. This was not an unusual request and S.B. obliged. The defendant then asked S.B. to give him a neck massage and S.B. once again obliged. The defendant then proceeded to give a neck massage to S.B. The pair then got to their feet and the defendant lifted S.B. off the ground with one arm and placed his other hand down the back of the complainant’s pants and inserted his fingers into her vagina. The defendant carried S.B. to the bedroom and placed her on the bed. He proceeded to remove her pants and underwear. The defendant performed oral sex on the complainant and then proceeded to have vaginal sex with her. During the vaginal sex, S.B. advised the defendant that she was ovulating. The incident ended with the defendant ejaculating on S.B.’s back.

9Following the first incident of sexual contact, the defendant had a shower and the complainant had an hour-long bath using Epsom salts. At the request of the complainant, the defendant drove her to a nearby pharmacy where she purchased “Plan B.” The pair then went to a nearby restaurant where they ordered food and then ate the food in Mr. A.B.A.’s vehicle. They proceeded to visit the defendant’s friend “Mikey” who provided the defendant with powdered cocaine. They then went to a nearby LCBO and together purchased 12 beers.

10They returned to the complainant’s apartment and the complainant invited Mr. A.B.A. up to her apartment to drink the beer and to consume the cocaine.

(ii) The Later Incidents

11S. B. and Mr. A.B.A. drank beer for the balance of the day on August 1st and into the early morning hours of August 2nd. They both consumed the cocaine.

12During this time, the defendant and the complainant engaged in numerous incidents of sexual activity in various locations in the apartment. Vaginal sex occurred on the counter in the kitchen, twice in the bedroom, and on the couch in the living room. Anal sex occurred once briefly in the bedroom.

13In the second bedroom incident, S.B. was hog-tied using a bondage rope found in her bedroom and specifically designed for this purpose. A caterpillar vibrator also located in the S.B.’s bedroom was used during this incident. For a brief period, the defendant and the complainant had anal sex. Each incident of sexual contact during the evening of August 1st and early morning of August 2nd ended with the defendant ejaculating into the vagina of S.B.

14Eventually the defendant left the complainant’s apartment later in the morning of August 2nd. Before he left, S.B. had made the defendant soup, cleaned up the apartment including scrubbing the balcony and the defendant and the complainant had spent leisure time together with the defendant reading e-books and the complainant knitting.

15S.B. contacted St. Joe’s Health Care Center a few days later to set up an appointment to be tested for sexually transmitted diseases and for pregnancy. She attended the appointment a few weeks later. All test results were negative. S.B. did not report the sexual assaults which she alleged took place on August 1 and 2, 2015 until after the final incident which is alleged to have taken place on August 6, 2015.

(iii) The Final Incident on August 6, 2015

16During the evening of August 5, 2015, J.B. was admitted to hospital on an emergency basis with a perforated bowel. On August 6, 2015, S.B. was at her sister’s house caring for her sister’s and the defendant’s five young children. On that date, the defendant arrived at the home and found S.B. in the kitchen caring for his oldest and youngest children. In the kitchen, the complainant sucked on the defendant’s neck. The couple ended up in an adjacent bathroom where S.B. performed fellatio on the defendant. The incident ended with the defendant ejaculating into S.B.’s mouth. S.B. spat the ejaculate onto her shirt.

Analysis

17Mr. A.B.A. is presumed innocent. The presumption of innocence is the fundamental principle underpinning our criminal justice system. This presumption of innocence continues until such time as the Crown has proven the defendant’s guilt beyond a reasonable doubt and a finding of guilt is made.

18Mr. A.B.A. was not required to testify. His decision to testify does not suggest his guilt nor does it reverse the burden of proof. Mr. A.B.A.’s decision to testify at trial, requires that I analyse the evidence using the R. v. W.(D.)¹framework as follows:

(i) First, do I believe Mr. A.B.A.’s testimony that S.B. consented to the sexual activity and contact between them on August 1, 2 and 6, 2015? If I do believe him, I must acquit him;

(ii) If I do not believe him, does the evidence of Mr. A.B.A. when considered in the context of the evidence as a whole leave me with a reasonable doubt regarding his guilt? If it does, I must acquit him.

(iii) Even if Mr. A.B.A.’s testimony does not leave me with a reasonable doubt, on the evidence that I do accept, has the Crown proven beyond a reasonable doubt that S.B. did not consent to the sexual activity.

19I will now address the issue of consent with respect to those incidents of sexual contact which occurred during the time the complainant and the accused were consuming alcohol and cocaine. S.B. testified that these incidents were a blur and all seemed to meld into one. She was able to recall sexual activity taking place with Mr. A.B.A. in the kitchen, on the couch and in the bedroom. She could not recall the order of these incidents. Despite her professed general lack of recall, throughout her testimony relating to these later incidents, S.B. was steadfast that she did not consent and that she expressed her lack of consent using verbal and non-verbal cues. She testified that she repeatedly said “no” and “stop that”. She says she tried to push him off her and free herself at various times.

20This is not a situation where the complainant’s level of intoxication was such that she was unable to consent or even that she was unable to remember whether or not she consented. Rather her level of intoxication simply caused her to have a less than perfect recollection of events. Some details were hazy yet others were surprising clear. As was noted in R. v. Chauhan, courts can infer a decision not to consent where there is direct evidence that the complainant was extremely intoxicated while the sexual touching occurred and there is other evidence that the complainant would not have consented.³ In this case, there is no other evidence that the complainant would not have consented. Moreover, there is no evidence of S.B. being extremely intoxicated to the point where she was unable to provide consent.

21While this is not a credibility contest, the only two witnesses at trial, being the accused and the complainant, gave entirely contradictory evidence on the issue of consent. S.B. claims she never consented to any of the sexual activity between her and Mr. A.B.A. which took place between August 1–8, 2015 and her conduct and words would have left no confusion in the mind of Mr. A.B.A. on this issue. Conversely, Mr. A.B.A. claims all of the sexual activity he engaged in with S.B. was with her full consent and agreement. The first step of the W.D. analysis requires me to assess whether I believe Mr. A.B.A.’s evidence on the issue of consent. If I do, I must acquit him. To assess the believability of Mr. A.B.A.’s evidence in this regard, I must consider his evidence in the context of the evidence S.B. His believability hinges in large part on whether or not I believe S.B. and find her to be a credible witness.

22I am mindful that the expectation of how a victim of sexual assault will, or should, behave must not be assessed on the basis of stereotypes, generalizations and myths. Having said that, the behaviour of the complainant occurring after the first incident causes me to approach her evidence with extreme caution skepticism. Her admitted conduct following the first incident and surrounding the later incidents on August 1 and 2, 2015 is, at the very least, inconsistent with her testimony that she was scared and intimidated by the accused.

23Unlike the child complainant in R. v. A.R.D, S. B. is an adult female. From her testimony we learned that she suffers from agoraphobia (fear of crowds and public places), post-traumatic stress disorder and fibromyalgia. She is on ODSP. However, there was no evidence to suggest she is a member of a particularly vulnerable sector of society. I have no reason to believe she is unable to care for herself and make appropriate decisions called for in the circumstances in order to protect herself from harm or further harm.

24S.B.’s conduct following the initial incident and during and following the incidents which followed on August 1st and 2nd, 2015 must be considered when assessing whether the complainant’s evidence that the sexual activity between her and the accused was not consensual, is credible. In doing so, I am not relying on myths and stereotypes or other generalizations as to how victims of sexual assault are supposed to react to the assault. Rather, I am applying common sense in the context of the circumstances facing S.B. as to whether her conduct is consistent with the sexual activity (admitted to have taken place by both parties), being non-consensual.

25The manner in which S.B. conducted herself after the first incident of alleged sexual abuse which took place on August 1, 2015 is inconsistent with her testimony that she was terrified of Mr. A.B.A. and scared of upsetting him for fear of what he might do if she did not oblige him. The following conduct in circumstances where she claims to have been brutally raped defies common sense:

• Immediately after the first incident she took an hour-long Epsom salts bath and left the door unlocked and slightly ajar while Mr. A.B.A. remained in the apartment;

• She provided a towel to Mr. A.B.A. while he was showering and came into the bathroom while he was showering to talk to him from time to time;

• During the alleged sexual assault she told Mr. A.B.A. she was ovulating and fertile. In response, Mr. A.B.A. ejaculated onto her back. She asked Mr. A.B.A. to drive her to a nearby pharmacy to obtain “Plan B” which he did and which she took. During the balance of the sexual contact that followed, Mr. A.B.A. ejaculated in her vagina;

• She claims she forgot to take her phone with her when they left her apartment following the first incident. She had access to Mr. A.B.A.’s phone while he was meeting with Mikey. She did not use the phone to call police, her sister, her mother or anyone else;

• She did not make sure that Mr. A.B.A. took his duffel bag with him when they left the apartment thereby ensuring he would need to return to the apartment to retrieve the bag;

• She went to a restaurant and ate the food in the vehicle with Mr. A.B.A.. She admitted the mood was pleasant;

• She did not call her sister to invite her over to her apartment as they had planned which would have ensured Mr. A.B.A. would not remain in the apartment when they returned;

• She accompanied Mr. A.B.A. into the LCBO store to purchase the beer.

• She admitted that she invited Mr. A.B.A. back into her apartment to drink the beer and consume the cocaine he had purchased after the first incident.

• When offered a beer by Mr. A.B.A. back in her apartment, she voluntarily accepted the beer. Her testimony in response to the question: “what did you say in response to his offer of a beer?” was: “Sure. Yes please.”

• When offered cocaine she did some. She said she felt pressured although admitted this was not the first time she had consumed cocaine. She testified that “[she] did some so he wouldn’t keep getting mad at me.” She then admitted to consuming cocaine three more times that evening.

• She testified that Mr. A.B.A. called her a “freak” suggesting she was sexually adventurous when he discovered the vibrator on her dresser. This is inconsistent with S.B.’s other testimony that Mr. A.B.A. was rummaging around the bedroom looking for sex toys to use on her during the assaults.

• When Mr. A.B.A. asked her to put her hands behind her back so he could put her hands in the bondage rope she said she did not fight him and let him do it. She claimed she did not fight him because she was scared of him yet she made no attempt to get out of the rope which, as demonstrated at trial, is easily done.

• She showed him nude pictures of herself which she maintained in a folder on her computer claiming he demanded she show him the pictures and she was scared of him. She could not explain how he would have known she had nude photos of herself on the computer without her telling him.

• Photographs taken of S.B. on August 13, 2015 depict bruises on various areas of her arms and legs. She claims the bruises were caused by Mr. A.B.A. during the various alleged sexual assaults which occurred ‘during the period August 1-8, 2015. During cross-examination she admits that only the bruises on her lower legs were caused by Mr. A.B.A.. S.B. was unable to identify which action of Mr. A.B.A. caused which bruise. She admitted she could not recall.

• During cross-examination, S.B. had trouble recalling whether or not she had seen Mr. A.B.A.’s penis before the August 2015 incidents. With some back and forth with defence counsel she ultimately admitted she had when she had “pantsed” him as a prank. The fact she may have pulled down his pants previously as a prank does not undermine her credibility with respect to whether or not she was sexually assaulted. Rather, the fact she claimed to not recall she had previously seen Mr. A.B.A.’s penis was not believable. Surely, that is an image not quickly, if ever, forgotten.

26The basic theme underpinning S.B.’s testimony was that she has never had any sexual attraction towards Mr. A.B.A. because he was her sister’s husband. She testified that she was sickened by the assaults. She testified that she simply went along with whatever he requested of her because she was terrified of and intimidated by him and he scared her. Her testimony is circular. To find her evidence that she was scared and frightened of Mr. A.B.A. credible, the court must first find she was raped. Aside from the alleged rape, there is no evidence to support a finding that her fear existed or if it existed was reasonable in the circumstances. She admitted, he never threatened her with physical violence at any time or slapped, punched, kicked or hit her as a means of forcing her to engage in sexual activity with him. After the last incident of vaginal intercourse in the bedroom, they snuggled before falling asleep. When they awoke later that morning, she made no attempt to have Mr. A.B.A. leave or leave herself. Instead, made her alleged rapist soup and spent some time knitting before Mr. A.B.A. left on his own accord. This is not the behaviour of an individual who has been brutally sexually assaulted for the past 15 plus hours.

27I have no doubt that certain of the sexual positions may have caused discomfort to S.B. and she may very well have expressed her discomfort to the defendant. Both the defendant and the complainant testified that the vaginal intercourse in the kitchen was uncomfortable because the complainant’s head was hitting the counter. In response, the defendant and the complainant moved their sexual activity to the bedroom. Both the defendant and the complainant testified that the vaginal intercourse on the living room couch with the complainant sitting on top of the defendant was uncomfortable. In response, the defendant and the complainant switched positions to make the complainant more comfortable during vaginal intercourse. Both the defendant and the complainant testified that the anal intercourse in the bedroom was causing the complainant discomfort. In response, the defendant ceased anal penetration and switched to vaginal penetration. Expressing discomfort and expressing a lack of consent are not one and the same.

28S.B. admitted that, aside from the alleged sexual assaults, at no time during any of the incidents did Mr. A.B.A. threaten to cause her physical harm or hit, slap or kick her. S.B. testified that at times she yelled out for him to stop and forcibly pushed him away and testified that at other times she did not fight back or ask him to stop the assault because she was frightened of him and scared of what he might do if she did. Surely, it is one or the other. She is either scared to fight back and tell him to stop, or not. The fact she behaved inconsistently in this regard, weakens her credibility.

29During the August 6, 2015 alleged assault in the bathroom, S.B. testified that she threatened the accused she would scream and fight him if he continued the assault and yet did neither despite him forcing her to perform fellatio on him. With respect to this assault, she admits to sucking his neck in the kitchen claiming she had no choice because he was forcing his neck into her face and she was scared of him. She claims he hustled her into the bathroom although he did not grab her and forcibly move her there. She testified that Mr. A.B.A. took his erect penis from his pants and pushed it into her mouth. She could not explain how he did this without her voluntarily opening her mouth. On cross-examination, she claims she allowed this to happen so that she did not bite his penis. One would have thought it would be difficult if not impossible to bite the defendant’s erect penis if it was not in her mouth and between her teeth which is where it was ultimately placed. In response to questioning by Crown counsel as to what she did after he pushed his penis into her mouth she responded: “I didn’t do anything. It was erect. It went into my mouth. It was in my mouth for 5-10 minutes. I made no attempts to get his penis out of my mouth. He ejaculated in my mouth”. This conduct is consistent with consensual sexual contact and inconsistent with non-consensual sexual contact.

30Turning now to the evidence of the defendant. I had the benefit of observing the defendant testify. His responses were calm and measured. He was not combative with Crown counsel during cross-examination. He had no hesitation admitting less than savoury elements of his character. For example, he readily offered that he had no hesitation having sexual relations with S.B., including during the time his wife was hospitalized. He admitted to assaulting his wife’s former boyfriend. He admitted to purchasing and consuming cocaine. Mr. A.B.A. admitted to suggestions by Crown counsel that he was of poor, or at the very least, low moral character. Character assassination does not prove his guilt nor does it make him more likely to have sexually assaulted S.B.

31Similar in vein to the requirement that the court must disabuse itself of stereotypes regarding how victims should behave, so too the courts must be loath to stereotype persons who commit sexual assaults. Merely because Mr. A.B.A. is a 220 pound man with what he claims is an exceptionally large penis and S.B. is a petite woman who presented as mild-mannered in the courtroom, does not make Mr. A.B.A. more likely to have committed the offence with which he has been charged and S.B. to be more likely a victim.

32In comparison to S.B.’s testimony, Mr. A.B.A.’s testimony has the “ring of truth.” In finding Mr. A.B.A. to be a credible witness, I have considered the following:

• He recalled S.B. showing him nude photos of herself and also recalled her showing him professional modelling photographs taken of herself and pictures of a man’s flaccid penis. This detail regarding the various photographs viewed on S.B’s computer in addition to the admitted nude photos of the complainant, suggests S.B. offered to show him photographs of herself rather than Mr. A.B.A. demanding he be shown nude photographs as she alleged.

• He testified that S. B. showed him a picture of a copy of the painting of “Hylas and the Nymphs” who explained the meaning behind the painting to Mr. A.B.A.. Mr. A.B.A. was unaware of the painting and the story behind the painting. S.B. admitted to having a copy of the painting displayed on her computer screen but denied showing it to Mr. A.B.A.. It must have been shown to him by S.B., as I believe that Mr. A.B.A. had no knowledge of this painting and its title, which he incorrectly referred to as “Hylos and the Nymphs”, before August 1, 2015.

• Mr. A.B.A. knew that S.B. maintained coconut oil in her apartment and he claims it was used as a lubricant during anal sex. S.B. admits to having coconut oil in her fridge but denies it was used as a lubricant. Surely, Mr. A.B.A.’s knowledge that S.B. maintains coconut oil in her apartment suggests it was used during the sexual activity as he claimed it was.

• Mr. A.B.A. testified to a number of sexual toys maintained by S.B. in a locked black box in the bedroom closet. S.B. admits only to possessing the caterpillar vibrator and the red bondage rope. She denies possessing the heart shaped vibrator, glass dildo and butt plug which Mr. A.B.A. testified he observed and which he says he used on S.B. during the various incidents of sexual activity. This level of detail and specificity with respect to the other items maintained by S.B. in her bedroom lends credibility to his testimony.

• Mr. A.B.A. recalled a sign in S.B.’s apartment which read “No Tell Hotel” and testified that S.B. had pointed to it to remind him that whatever sexual activity occurred between them must remain in confidence for fear of what J.B. might do. This testimony is consistent with the balance of Mr. A.B.A.’s testimony that although the sexual activity was consensual, S.B. was worried what might happen if her sister ever discovered they had been sexually intimate. S.B. admitted to having the sign in her apartment but denied she ever made reference to it.

• Mr. A.B.A. knew S.B. had cut herself and testified she told him she would harm herself if he told anyone. If he was her rapist she would not have confided in him her past self-harming behaviours.

33By virtue of the framework in W.(D.) and my duty to first consider whether I believe Mr. A.B.A.’s denials of sexual assault, I need go no further in my analysis. I believe Mr. A.B.A.’s testimony that he did not sexually assault S.B. at any time during the period August 1-8, 2015, and therefore I must acquit him of this charge.

34Accordingly, I find A.B.A. not guilty of Count 2 on the indictment.

Footnotes

1. 1(1991), 1991 93 (SCC), 3 C.R. (4th) 302 (S.C.C.).
2. 3For example, where the complainant was a lesbian and the perpetrator was male: R. v. Morden, (1991) 5766 (BCCA).
3. 22014 ONSC 5557 at para. 52.
4. 42017 ABCA 237; aff’d on appeal 2018 SCC 6.