COURT FILE NO.: CR-17-385
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Tarrique Gordon
Accused
C. Hackett, for the Crown
N. Gregson and A. Tran, for the Accused
HEARD: February 27, 28 and March 1, 2018
REASONS FOR JUDGMENT
PETERSEN, J.
NOTICE: Pursuant to s.486.4(1) of the Criminal Code of Canada, the Court has ordered that any information that could identify the complainant in this proceeding shall not be published in any document or broadcast or transmitted in any way. To protect the complainant’s anonymity, I have used random initials (“AB”) to refer to her in this decision. I have also used a pseudonym (“Anna”) to refer to the complainant’s friend.
Introduction
[1] The accused, Tarrique Gordon, pleaded not guilty to charges of sexual assault (s.271 of the Criminal Code of Canada) and sexual interference, specifically touching a person under the age of sixteen years, directly with a part of his body, for a sexual purpose (s.151 of the Criminal Code of Canada). Both charges arose from contact that he had with AB on November 16, 2015. AB was 15 years old and Mr. Gordon was 19 years old at the time.
[2] Some of the relevant facts are not in dispute. Mr. Gordon admits that he touched AB’s vagina with his hands and penis on the date in question. He admits that the touching was intentional, was sexual in nature, and was done for a sexual purpose. While there is a factual dispute about the extent of the sexual touching that occurred, the main issue on which his testimony and AB’s testimony diverge is consent.
[3] Absence of consent by the person being touched is one of the elements of the actus reus of the offence of sexual assault. R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para.25. It is not an element of the offence of sexual interference, but s.150.1(2.1)(a) of the Criminal Code provides that consent of the complainant is a defence to a charge under s.151 where, as in this case, the complainant is between the ages of 14 and 16 years and the accused is less than five years older than the complainant. In respect of both charges against Mr. Gordon, therefore, the Crown bears the onus of proving beyond a reasonable doubt that AB did not consent to the sexual touching.
Evidence at Trial
[4] AB gave a video-recorded statement to police the day after the incident. She adopted the contents of the statement when she testified. The recording was admitted into evidence, with Mr. Gordon’s consent, pursuant to s.715.1(1) of the Criminal Code. In her statement (which became her evidence-in-chief) and during her cross-examination, AB stated that she clearly communicated, both verbally and through her actions, that she did not want to be touched sexually by Mr. Gordon, but he persisted despite her objections and resistance. Mr. Gordon testified, in contrast, that he solicited and obtained AB’s unequivocal consent to all of the sexual activity that occurred. He described AB as an active and willing participant in a consensual sexual encounter.
[5] AB’s mother also testified. Her evidence was restricted to events following the incident that led to the criminal charges. The record also includes documentary evidence: photographs of the location where the incident occurred and Facebook Messenger messages between the complainant and the accused prior to the incident, and between the complainant and her friend Anna immediately following the incident. There is also forensic evidence gathered through a medical examination of AB that was conducted on the night of the incident.
[6] The only direct evidence regarding the incident itself is the divergent testimony of Mr. Gordon and AB. As in most sexual assault cases, credibility and reliability determinations are therefore critical to the outcome of this case.
Analytical Framework
[7] My analysis of the evidence must not devolve into a mere credibility contest between AB and Mr. Gordon. Such an approach would erode the operation of the presumption of Mr. Gordon’s innocence and the Crown’s burden to prove his guilt beyond a reasonable doubt. R. v. W.(D.), [1991] 1 S.C.R. 742 at para.9-12.
[8] In W.(D.), at para.11, the Supreme Court of Canada articulated the following three step analytical framework for a trier of fact in a case such as this one:
i. If I believe the accused’s exculpatory evidence, then I must acquit him.
ii. If I do not believe the accused’s exculpatory testimony but I am left in reasonable doubt by it, I must acquit him.
iii. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[9] The Ontario Court of Appeal has ruled that, in judge-alone trials, the trial judge is not required to approach the evidence in any particular chronology (for example, by looking first at the accused's evidence and then at the rest of the evidence). The trial judge must, however, have regard for the basic principles underlying the W. (D.) instruction. R. v. Minuskin (2003), 181 C.C.C. (3d) 542 (Ont. C.A.) at para.22.
Events Preceding the Alleged Assault
[10] The events preceding the alleged assault are not in dispute.
[11] AB and Mr. Gordon communicated for the first time through Facebook Messenger. Mr. Gordon’s profile came up in AB’s Facebook feed as someone that she might know. She had never met him before, but he had the same last name as one of her friends. She messaged him at 6:36 PM on November 11, 2015 to ask whether he was related to her friend. He responded “no” and they then exchanged approximately forty five messages (printed copies of which were entered into evidence at the trial).
[12] The messages were very brief, devoid of punctuation and filled with short-hand acronyms typical of social media exchanges between youth (eg. “hbu” = how about you?, “wbu” = what about you?, “lol” = laughing out loud). Mr. Gordon asked AB where she was from. She responded “Brampton” and he replied that he was also from Brampton. He asked which school she attended and she told him the name of her school. She asked how old he was. He responded “19 Wbu”, to which she replied “15 almost 16”. (She was, in fact, almost exactly 15 ½ years old at the time.) He asked what she was doing the next day after school and whether they could “chill” at a local recreation centre. She said yes, “unless something comes up”. He asked for her phone number, which she provided. The exchange ended with him stating that he would text her back later because he was going to get something to eat.
[13] Mr. Gordon did not text AB (on her cell phone) or message her (on Facebook Messenger) later that night. She messaged him at 9:58 PM, stating simply “hey”. He did not respond. She messaged him again at 8:24 AM the next morning, asking “What happened lol you were suppose to text me then didn’t”. He responded that he had fallen asleep. He then asked if he could text her on her phone. She said yes and from that point onward, they communicated by text instead of Facebook Messenger.
[14] They did not meet at the recreation centre on November 12, 2015, as they had discussed the night before. For the next four days, they texted each other frequently throughout the day. They exchanged 30-35 text messages daily. They also spoke on the telephone a few times.
[15] The text messages were not entered into evidence at the trial, but both AB and Mr. Gordon testified that the texts consisted of casual conversation (eg. “How was your day?”, “What’d you do at school?”, “What’d you eat for lunch?”). Mr. Gordon testified that he also asked AB by text whether she had a boyfriend and she said no. This evidence was not disputed by AB and I find it to be credible.
[16] On November 16, 2015, Mr. Gordon was standing at the back of AB’s school with some friends when she exited the building in the afternoon. They had not planned to meet in person that day. Mr. Gordon recognized AB from her Facebook profile photo. He asked one of his friends to call out to her. The friend called AB’s name and she then walked over to them. She recognized Mr. Gordon from his Facebook profile photo. They exchanged some brief pleasantries. They spoke for just a couple of minutes before she left. Mr. Gordon asked her if they could meet up and hang out later that day. She said yes.
[17] AB went home to change out of her school uniform. Mr. Gordon texted her to confirm that they were going to meet. They agreed to meet at the recreation centre. When she arrived around 4:30 PM, he was already there. They greeted each other by a sand box and she gave him a hug. They walked around the grounds, which included a school as well as the recreation centre, and a variety of outdoor activity facilities (such as basketball nets). She was playing on her phone while they walked. She texted her friend Anna to come join them. AB testified that she did this because she had not seen Anna that day, she was feeling bored, and she felt awkward being alone with Mr. Gordon. She said she “wasn’t scared or anything”, she just felt awkward. She told Mr. Gordon that she had texted her friend to join them.
[18] Anna arrived around 5:00 PM. She and Mr. Gordon had never met before. Anna asked him some questions about himself, including how long he had been growing his hair. It was windy and AB felt cold, so she suggested that they go into a small alcove by the side of the building to get out of the wind. The three of them moved into the alcove.
[19] At some point, AB touched Mr. Gordon’s hair and commented that it was longer than hers. She testified that she did this while Anna was present. Mr. Gordon testified that AB was “playing with” his hair both before and after Anna arrived, and again after Anna left. Nothing turns on this detail, apart from the fact that touching Mr. Gordon’s hair could be construed as a form of flirtation by AB.
[20] Around 6:00 PM, Anna decided to go home. She asked AB to walk her through the parking lot. AB walked her partially home. Mr. Gordon stayed in the alcove. It was starting to get dark. The street lights had come on.
[21] AB returned to where Mr. Gordon was standing in the alcove. They were alone in the alcove for about 10-15 minutes before any sexual contact began.
[22] AB testified that the only person she saw that afternoon, other than Anna and Mr. Gordon, was a worker near some machinery that was not far from the alcove. She stated that she noticed the worker right after Anna left and that the worker left a few minutes later. Mr. Gordon testified that, at one point, he saw a janitor inside the school through a glass door. He did not specify exactly when he noticed the janitor. They both stated that they did not see any people coming or going from the recreation centre while they were standing alone in the alcove after Anna left.
[23] From this point onward, their testimony diverges significantly.
Mr. Gordon’s Account
[24] During his testimony, Mr. Gordon described the following consensual sexual encounter.
[25] When AB returned to the alcove after walking Anna part-way home, she walked up to him and put her head on his chest. They were facing each other, standing very close together. She put her hand on his hip and he then put his arms around her waist. He asked her if she was sexually active and she said yes. He asked her if she had ever had sex outdoors and she said yes.[^1] They stood there, cuddling close together, for 10-15 minutes.
[26] Mr. Gordon then asked AB if he could “touch her boobs”. She thought about it for maybe 30 seconds, then said ok. He fondled her breasts on the outside of her sweater. She started “rubbing up on his dick”, on the outside of his track pants. He then asked if he could “touch her down below”. She said ok. He put his hand inside her tights and inserted his finger in her vagina. She put her hand inside his track pants and started giving him a hand job. After 3 or 4 minutes, he asked if he could “insert it”, meaning insert his penis in her vagina. She said ok.
[27] He then asked if she wanted to put a condom on him. She said no. He put it on himself, using both hands. They were facing each other while he did this.
[28] He then asked her to turn around and she did. He asked her to bend over and she did. She pulled her tights down and then he pulled them down a bit more. She leaned against a door in the alcove.
[29] He tried to penetrate her vagina twice from behind, but his penis did not go in. This lasted about 3 to 5 minutes. They did not speak during this time. He was not successful in penetrating her, so he stopped trying and pulled up his pants. She pulled up her clothes and turned around to face him. She put her head on his chest again. He asked if she was ok and she said yes. He asked if everything was ok between them and she said yes.
[30] After about 10-15 minutes, he needed to leave to go to work. Before leaving, he asked if they could do it again. She said yes. They both left the recreation centre and walked in different directions.
[31] AB texted him shortly afterward, but he did not read the message until the next morning, because he was at work. Her text message stated that she enjoyed it and that “we should do it again, but not there”, meaning not at the recreation centre. He responded to the text the next morning, saying “ok”.
[32] He texted her again later, simply saying “hey”. She did not respond. He called her twice on the phone and she did not answer. She did not call him back. He made no further effort to contact her.
[33] The police contacted him about her report of a sexual assault two days after the incident.
AB’s Account
[34] AB gave a very different account of her interaction with Mr. Gordon after Anna left. She described the following sexual assault.
[35] When she returned to the alcove where Mr. Gordon was standing, she stood behind him, facing his back. She was playing with her phone, not paying attention to him, and he told her to put it away. His demeanor and tone of voice were normal, not aggressive.
[36] Suddenly, out of nowhere, he asked her, “If I touch you, will you tell?” She was not sure she had understood him correctly. She felt confused because they had not had any prior discussion about sex. She asked him, “What? What did you say?” and he responded, “Nothing, nothing, it’s not important.”
[37] He was standing closer to her than previously. He started touching her crotch. She said, “What are you doing?” and he responded, “I just asked you and you didn’t answer me.” She then said, “Asked what?” and he repeated, “If I feel you, would you tell?”
[38] She told him to stop. She said, “It’s freezing out here”. She testified that she was not comfortable with what was happening and the cold was only making it worse. She told him no repeatedly, but he pleaded with her, “let me do it once” and said that she would not be cold anymore. She said no but he put his hands down her pants.
[39] She removed his hands and tried to move them away from her body as much as possible. He persisted. He tried to touch her vagina a couple of times. He felt it a little bit the second time, but did not penetrate it with his fingers. She told him that she “didn’t want it”.
[40] He then asked, “Can I put my penis inside you?” She said no. He pleaded with her (“Come on. It’ll be fun. Let me do it”). She continued to say no.
[41] He told her, “No one’s coming”. He asked whether she didn’t want to do it outside. She told him she didn’t want to do it at all.
[42] He seemed confused. He asked her, “Why? Are you scared?”, “Do you have a boyfriend?”, “Is it ‘cause I’m like older than you?”, “Is it because we’re outside?” and “Is it because you don’t like me?” He was really persistent.
[43] She kept pushing him away and moving his hands away from her body.
[44] He asked her to put a condom on him. She said no. He then put it on himself. She was facing him while he did this.
[45] He then “made” her turn around and he “put” her against the door. He kept trying to bend her over and pull down her tights. She was saying, “No. Stop.” He was leaning on her back and she was pushing him off. She tried to move as much as she could. She kept telling him no.
[46] The first time he attempted to penetrate her vagina with his penis, he was not successful. He told her that she was not bending over properly. She said she didn’t want to, that’s why.
[47] He kept trying. His penis entered her vagina twice. He told her she wasn’t bending over properly, that “it keeps coming out”. Then he stopped. She thinks he stopped because she was resisting him so much that he got fed up with trying.
[48] After he stopped, she pulled up her clothing. He also got dressed. She did not see him remove the condom but she saw him put it in his pocket.
[49] They remained there in the alcove for 10 to 15 minutes. During that time, he told her he would come to her school the next day at lunch and they could go to his house where it’s warmer and do it again. His demeanour was normal. He seemed to think that what had just happened was ok.
[50] Before they left, he asked her for a hug. She gave him a hug. She then walked home alone.
[51] She described feeling “in shock” on her way home. She testified that she “didn’t understand what had happened” and that it “didn’t register”.
[52] Mr. Gordon had said that he would come to her school the next day so that they could go to his house and do it again. She did not want to see him and did not want it to happen again, so she texted him on her way home. Her message conveyed that what had happened wouldn’t happen again.
[53] He texted her the next morning and called her twice. She did not answer the calls. She did not respond to the text or call him back.
The Missing Text Messages
[54] None of the cell phone text messages was preserved by either AB or Mr. Gordon, including the critical text that AB sent to Mr. Gordon on the way home from the recreation centre on November 16, 2015.
[55] Mr. Gordon explained that, at the time, he used an iPhone 4 with only 16 GB of memory. The phone would fill up quickly with music files that he downloaded. It would function very slowly when full, so he would frequently reset the phone to speed it up. He testified that he reset it just prior to when the police contacted him about AB’s report of a sexual assault. In the reset, he lost all of his text messages.
[56] AB was also using an iPhone at the time. She testified that she lost her call log and text messages when she updated the operating system on her phone. She did not know whether her phone automatically backed-up data to “the cloud”[^2].
[57] Defence counsel challenged AB’s evidence and suggested that she deliberately erased the texts because she did not want the police to see the message she sent Mr. Gordon telling him that she had enjoyed their sexual encounter and wanted to do it again. She denied sending such a message, denied intentionally erasing any text messages from her phone and maintained that the messages were accidentally lost.
[58] In closing submissions, Defence counsel argued that AB could have retrieved the text messages from the cloud. He also argued that her explanation of losing the texts as a result of an operating system update was not plausible and should be rejected as not credible.
[59] Cell phone technology advances rapidly and changes constantly. Without any expert evidence about automatic backups to the cloud, the impact of resetting an iPhone 4, and the impact of updating an operating system on an iPhone in November 2015, I am unable to make any findings with respect to the plausibility of either AB’s or Mr. Gordon’s explanations for the lost text messages. I draw no inferences about their reliability or credibility based on their failure/inability to produce the texts or based on their evidence regarding how the texts were lost.
AB’s Facebook Messenger Exchange with Anna
[60] Although there are no cell phone text messages entered into the record, there is evidence of Facebook Messenger messages that AB exchanged with her friend Anna when she got home that evening.
[61] AB testified that she texted Anna as soon as she arrived home because she thought that she “might not feel as upset” if she “told somebody”. She stated that she thought Anna would believe her because Anna was just there with them at the recreation centre.
[62] The exchange of messages begins with AB writing, “He tried fucking me.” Anna asked, “what do you mean?” and AB responded, “He kept pulling his junk out and trying to put it in me I’m almost in tears cause I said no and then he started playing around and I told him no and didn’t listen I’m Almost in tears”. AB also wrote, “Please don’t tell anyone about this I’m never talking to him again I just basically cheated on jamual”. Jamual was AB’s boyfriend at the time.
[63] Anna reassured AB that she would not tell anyone. AB then wrote, “I don’t know what to do I was basically raped”. Anna suggested that AB tell her mother. AB responded, “I can’t” and “She will kill me”. Anna wrote, “Its not ur fault wtf”[^3]. AB wrote, “I told him no and he tried again and again”. She also wrote, “I didn’t go in but he kept putting his hands down my pants”. During her testimony, AB clarified that what she meant to write is “it didn’t go in”, “it” referring to Mr. Gordon’s penis.
[64] Anna urged AB to tell her mom, saying that “it’s the right thing to do”. AB responded, “I’m to scared to say anything”. She then wrote, “he didn’t put it in and I just can’t believe I let it happen, can we just act like it didn’t”. She also wrote, “I’m just going to pretend it didn’t happen and it will go away it was almost in and I yelled at him”.
[65] Anna told AB that she could have Mr. Gordon charged. AB wrote, “I just want to pretend it didn’t happen if jamual finds out he will hate me forever”. The exchange ended with Anna writing, “Idk[^4] if that the right thing to do”.
[66] AB’s Facebook messages to Anna include both prior consistent statements (i.e., consistent with her testimony about the alleged sexual assault) and prior inconsistent statements. It is important to note that there are constraints on the permissible uses of the evidence of prior consistent statements.
[67] It is well established in the jurisprudence that a witness’s prior consistent statements are presumptively inadmissible because they lack probative value, are self-serving, and are superfluous in light of the witness’s presence at trial. They are potentially misleading because the trier of fact may be inclined to believe (erroneously) that, because a witness said the same thing on more than one occasion, it is more likely to be true. R. v. Warren, 2016 ONCA 104 at para.11 and R. v. Murray, 2017 ONCA 393 at para.151.
[68] The prohibition against the admissibility of prior consistent statements is not, however, absolute. One of the exceptions to the general rule is that they may be admitted to “provide important context in which a trier of fact may assess an attack on the witness’ reliability based on alleged inconsistencies.” Murray at para.152 and 159 and Warren at para.12. In this case, the prior consistent statements are admitted for that purpose and are not used as evidence of the truth of their contents. Murray at para.162 and Warren at paras.11 and 12.
[69] It should also be noted that Anna declined to give a statement to the police and did not testify at the trial. I draw no adverse inference from the Crown’s decision not to call her as a witness, since the events that she observed (leading up to the alleged assault) are not in dispute, and printed copies of the Facebook Messenger messages have been adduced as evidence. Her testimony would have added little to the record.
AB’s Disclosure to her Mother
[70] AB’s mother testified that she was home washing dishes when AB arrived that evening. She observed that AB “didn’t look right, she looked upset”. She recalled asking AB what was wrong. She stated that AB responded “nothing” and went to her room. Shortly thereafter, AB messaged her and said she had something to tell her.
[71] AB testified that she was afraid to tell her mother what happened because she did not want her mother to get mad at her and did not want her mother to think it was her fault. She said that it was a very difficult subject to bring up with her mother but Anna persuaded her to do it.
[72] After messaging her mother, AB spoke to her mother in person and disclosed her account of what happened. Her mother recalled that AB was crying when they spoke.
[73] Her mother then said that they needed to contact the police. AB agreed and her mother made the call.
[74] After the officers arrived at their house, AB and her mother went to a hospital, where AB underwent a medical examination.
Legal Principles Governing my Analysis
[75] The following principles must guide my legal analysis and assessment of the evidence.
[76] The presence or absence of consent must be determined with reference to AB’s subjective perspective and internal state of mind toward the sexual touching at the time it occurred. Ewanchuk, at paras.25-27.
[77] Although AB’s testimony is the only available source of direct evidence as to her state of mind, her statement that she did not consent is a matter of credibility that must be assessed in light of all the evidence. I must determine whether her claim of non-consent is consistent with the totality of the evidence. Ewanchuk, at paras.29-30.
[78] In a case such as this, where the outcome largely rests on the evidence of two conflicting witnesses, I must be satisfied beyond a reasonable doubt on the issue of the witnesses’ credibility and reliability. W.(D.), at para.10.
[79] I may believe all, none or some of a witness’s evidence. R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. H. (B.), 2015 ONCA 642 (Ont. C.A.), at para.22; R. v. Doell, 2016 ONCA 350, at para.7.
[80] I may take into consideration the manner in which a witness testifies, but I must guard against over-reliance on demeanour in assessing witnesses’ credibility. R. v. D.P., 2017 ONCA 263, at para.26, leave to appeal denied 2017 CarswellOnt 18263 (S.C.C.). The Ontario Court of Appeal has repeatedly cautioned against giving undue weight to demeanour evidence. In R. v. Rhayel, 2015 ONCA 377, at para. 85, the Court held that “demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes and the artificiality of and pressures associated with a courtroom."
[81] Throughout my reasoning, I must be hyper-vigilant against the incursion of unfounded assumptions or prevalent stereotypes about sexual assault and about women who experience sexual assault. R. v. A.R.J.D., 2017 ABCA 237 at para.60, aff’d (2018) S.C.C. 6. Such assumptions and stereotypes, commonly referred to as “rape myths”, have tainted sexual assault jurisprudence for years. Appellate courts have repeatedly admonished trial judges for this faulty reasoning. The Supreme Court of Canada has ruled that drawing adverse inferences regarding a complainant’s credibility based upon now-rejected stereotypical assumptions about how people react to acts of sexual abuse constitutes a reversible error of law. R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para.63.
[82] This does not mean that the testimony of sexual assault complainants can be subjected to lesser scrutiny than that of any other witness. Although I must avoid making adverse inferences about AB’s credibility based on discredited rape myths, I must also avoid unprincipled forgiveness of any deficits in her testimony. I must apply even-handed scrutiny to the testimony of all Crown and defence witnesses. R. v. Greer, 2009 ONCA 505 (Ont. C.A.), at para.6.
Analysis of Mr. Gordon’s Credibility
[83] There were numerous inconsistencies in Mr. Gordon’s testimony. He was mistaken about a number of details. Although the details are minor, and his errors could well be due to the passage of time, I am troubled that he did not hesitate to offer self-serving testimony on issues about which he did not have a clear recollection.
[84] For example, he testified that, after their exchange on Facebook Messenger, AB had initiated text messaging with him. He was later forced to concede, during cross-examination, that he must have texted her first because she did not have his cell phone number. She had provided him with her cell phone number, upon his request, during their initial Facebook Messenger exchange.
[85] Mr. Gordon also testified that, when he showed up at AB’s school on November 16, 2015, he did not know that was the school she attended. He subsequently retracted that statement when he was reminded that AB had given him the name of her school, upon his request, during their Facebook Messenger exchange a few days earlier.
[86] Later in his testimony, he was trying to make the point that he and AB were getting to know each other in the days preceding November 16, 2015. He stated, at that point in his testimony, that he had a clear recollection of telling AB on the phone that two of his brothers attended her school. His earlier testimony that he did not know which school she attended was therefore not simply a mis-statement or an instance of mis-remembering facts. They had discussed her school more than once, both on Facebook Messenger and on the telephone. Mr. Gordon was therefore being untruthful when he testified that he did not know which school she attended. His false testimony about not knowing her school was self-serving because it made their first in-person meeting appear to be random and coincidental, and precluded the possibility that the meeting may have been pre-planned by him.
[87] These inconsistencies in Mr. Gordon’s testimony compromise his reliability and credibility. His credibility is further undermined by shifts in his evidence. For example, when he described their sexual encounter in detail during his examination-in-chief, he did not mention anything about kissing. When asked to review, during his cross-examination, the sexual activity that occurred, he stated, for the first time, that AB kissed him on his lips. He testified that she initiated the kiss and said he did not kiss her back because he does not like kissing. This change in his testimony was self-serving because it made AB appear to be more eager and sexually aggressive.
[88] There were occasions during Mr. Gordon’s cross-examination when his body language and hesitation displayed discomfort. Defence counsel argued that he was nervous and out of his element, which is a plausible explanation for his demeanour, so I place no weight on it in assessing his credibility. I note, however, that in these moments, he was prone to change his answers to some questions once he realized that something he had stated may not be favourable to his defence.
[89] For example, in his examination-in-chief, he stated that he asked AB whether she was sexually active while they were cuddling together in the alcove, minutes prior to their sexual interaction. During his cross-examination, when Crown counsel put to him that there was no talk of sex between them before they met in person that day, he stated, for the first time, that he had asked AB in an earlier text whether she was sexually active and she had told him “no”. He immediately corrected himself and said she told him (in a text) that she was “not a virgin”. When asked by Crown counsel to clarify his answer, Mr. Gordon repeated that, in response to a question from him, AB had texted him that she was not a virgin. He insisted that this conversation with AB occurred by text and not in person. Crown counsel reminded him of his prior inconsistent testimony and he then changed his evidence. He testified that he asked AB about her sexual history twice, once by text on an earlier occasion and then a second time in person that day. This evidence makes no sense, as there would be no reason for him to ask her again in person if she had already answered him days earlier in a text.
[90] Another example relates to Mr. Gordon’s testimony that the reason he asked his friend to call out to AB when she emerged from her school on November 16, 2015 was because his friend “knew her”. In response to further questions about why he did not call out to her himself, he acknowledged that they “were not that close” and that, although they had been texting for a few days, he “didn’t know her that much.” He agreed with Crown counsel that their text messages were very general and did not include specific details about AB’s life. Mr. Gordon then appeared to realize that his answers to this line of questioning might undermine his account of a consensual sexual encounter just hours later with this same girl, who he hardly knew – indeed, he did not even know her well enough to approach her in a group setting. He then started to resile from his evidence. He qualified his earlier answers by saying that, although their text messages were general in nature, their phone calls included more personal discussions about family and friends. He tried to create the impression that he and AB got to know each other personally through their telephone calls prior to having sex. This was inconsistent with his earlier testimony that their calls were just casual conversation about such superficial topics as how their day was going and what they had eaten for lunch.
[91] Mr. Gordon’s testimony was also misleading in certain respects. For example, during his examination-in-chief, he stated that there were a lot of people around, walking dogs, playing basketball and going in and out of the building, while he and AB were walking around the grounds of the recreation centre. It became clear only during his cross-examination that, by the time the sexual incident occurred in the alcove, there was no one else around. His initial evidence, prior to cross-examination, left the impression that it was a busy place, when in fact the alcove where the alleged assault occurred was an isolated location.
[92] Defence counsel submitted that, although Mr. Gordon sometimes contradicted himself on ancillary details, he was unshaken during cross-examination in his testimony about the critical facts of what happened in the alcove. This is true. Crown counsel argued, however, that key aspects of Mr. Gordon’s testimony, albeit consistent, were simply not believable.
[93] Crown counsel submitted that Mr. Gordon’s account of how the sexual encounter unfolded is not plausible. She referenced his assertion that AB walked up to him in the alcove and put her head on his chest, initiating cuddling, without exchanging any words and without any prior intimate contact or flirtation between them (other than touching his hair, which might be construed as flirtatious). Crown counsel also referenced his account of AB not reacting or saying anything when she kissed him on the lips and he did not kiss her back. Crown counsel questioned the plausibility of AB participating willingly in progressively intimate sexual activity, outdoors, with an older boy and relative stranger, who she had met on line only a few days prior and had just met in person a couple hours earlier that day. Crown counsel submitted that these aspects of Mr. Gordon’s account simply do not accord with human experience.
[94] Crown counsel also submitted that Mr. Gordon’s testimony about text messaging with girls was unbelievable. When he stated, during his cross-examination, that he had asked AB in a text message whether she was sexually active, Crown counsel reminded him that he had earlier testified that their text communications were just about “normal stuff”, such as “how was your day?” and “what did you do at school?”. Mr. Gordon denied any inconsistency in his testimony and asserted that asking a girl if she is a virgin “is typical everyday conversation” for him. Crown counsel seemed incredulous, but he insisted, “I always ask girls if they are a virgin”. He said it’s a “normal thing” that he asks new girls he has just met, even if he doesn’t know much else about them. He then clarified that he only asks girls who he is interested in dating. He said that they usually respond to his question.
[95] Crown counsel asked me to find that Mr. Gordon’s version of the events is simply not consistent with human experience of how people communicate and have sex. While his evidence may seem implausible to some, I am mindful of the need to assess his credibility in the context of his and AB’s youth. The Supreme Court of Canada has recognized that children may experience the world differently from adults, so it may be wrong, in some cases, to apply adult standards for credibility to the testimony of children. R. v. W.(R.), [1992] 2 S.C.R. 122, at para.25. The complainant in this case is not a child, but she is a minor and was only 15 years old on the date in question. Mr. Gordon was 19 years old, legally an adult, but still attending high school and still immersed in youth culture.
[96] Adolescents are at a different stage of life than older adults. Their priorities, values and social norms may be distinct from those of older adults. They may have different notions of etiquette and social propriety. Youth culture changes over time, but tends to be identifiable in each generation by such things as distinct music, fashion, style and vocabulary. In the current era, it is largely shaped by social media. Adolescents may have less restrictive conceptions of privacy because of the widespread phenomenon of “sharing” personal details of their lives on social media platforms and the relative ease with which personal information can be disclosed widely through modern technology, without having to overcome the inhibitions associated with face-to-face communication. Today’s adolescents are growing up in the age of internet dating. They are coming of age in the wake of the emergence of HIV and the AIDS epidemic, which transformed public discourse about sexual health and sexuality. They have greater access than any previous generation to information about sex and to graphic sexual imagery. Their social, romantic and sexual interactions may unfold differently than those of older adults due to all of the above factors, as well as their lack of maturity, relative lack of sexual experience, appetite for new experiences, urge to explore their sexuality, and desire for greater autonomy and agency.
[97] Because of the unique features of youth culture and the distinctive ways in which youth experience the world, it is important not to ascribe adult expectations to the interactions of youth and not to measure the plausibility of young witnesses’ testimony against adult standards and norms.
[98] With this in mind, I am not prepared to reject Mr. Gordon’s testimony about his practice of asking young girls about their sexual history in casual texting conversation. It may well be a common feature of youth culture for mere acquaintances to make such intimate inquiries and to share this personal information liberally, particularly if they are interested in dating.
[99] I do not agree that Mr. Gordon’s description of AB’s silence and lack of reaction to an unreciprocated kiss is inconsistent with human experience of how people have sex. While adults may be expected to interact differently, adolescents having sex with a new partner may not have the maturity (or inclination) to engage in dialogue about their sexual preferences.
[100] Finally, I do not agree with Crown counsel that it is implausible for a 15 year old girl in 2015 to engage in consensual sexual activity, outdoors, with a 19 year old boy who she just met on line a few days earlier. It does not strain credulity that an adolescent girl might behave in that fashion.
[101] However, I find other aspects of Mr. Gordon’s evidence to be implausible.
[102] First, his version of the events portrays AB as an active participant who initiated physical intimacy and escalated the sexual activity once it began. He says that she placed her head on his chest and her hand on his hip as soon as she returned to the alcove. He says she started rubbing his penis while he was fondling her breasts. He says she kissed him on the lips, put her hand inside his pants and started giving him a hand job. While I accept that such behaviour is not implausible for a 15 year old girl, I have difficulty reconciling this portrayal of AB with the fact that she had earlier texted her friend Anna to join them because she felt awkward being alone with Mr. Gordon. Although she returned to the alcove after Anna left, which suggests that she was no longer feeling awkward alone with him, her earlier decision to ask Anna to join them reflects a degree of insecurity that is not consistent with the sexual assertiveness ascribed to her by Mr. Gordon.
[103] In his account, AB was not only a willing participant in sex, she was sexually aggressive. Despite her demonstrated eagerness to progress to greater sexual intimacy, he claims that he continued to be extremely cautious by asking permission to touch her at each step. I accept Crown counsel’s submission that, if AB’s actions had so clearly communicated her consent to sexual activity, as well as a desire for the sex to progress to increasingly intimate contact, there would have been no cause for Mr. Gordon’s purported diligence in constantly seeking verbal confirmation of her consent.
[104] For all of the above reasons, I find Mr. Gordon’s description of AB’s sexual eagerness and assertiveness to be implausible and unbelievable in the context of the evidence as a whole.
[105] Furthermore, I agree with Crown counsel’s submission that Mr. Gordon’s account of how the sexual activity ended does not accord with human experience of a sexual encounter between consenting adolescents. He testified that he stopped trying to penetrate AB’s vagina because his attempts at sexual intercourse, while she was bent over, were not working. He had not ejaculated. According to his testimony, he pulled up his track pants, with his penis erect, still wearing a condom. He said that neither of them suggested trying penetration in a different position. She did not resume a hand job, nor did he ask her to do so. There was no discussion of performing oral sex. Their sexual activity just ceased abruptly and there was no further sexual touching of any kind.
[106] I find that, if AB had been an eager and reciprocating participant in the sexual touching, as Mr. Gordon suggested, they would have continued with other sexual activity, rather than stopping altogether when the initial attempts at vaginal penetration were unsuccessful. AB gave a more probable explanation, namely that Mr. Gordon stopped his efforts at sexual intercourse because he was frustrated by her lack of cooperation and that is also why no further sexual touching occurred.
[107] With respect to AB’s text to Mr. Gordon on her way home from the recreation centre, I reject his evidence that she said she enjoyed their sexual encounter and suggested that they do it again. I agree with Crown counsel’s submission that, if the content of the message was as Mr. Gordon described, then he would have made greater efforts to follow up with AB the next day.
[108] Mr. Gordon wanted to have sex with her again. He told her so while they were in the alcove. He also testified that he responded “yes” to her purported text invitation to do it again. However, he gave up trying to contact her after sending her one other text (“hey”) and calling her twice, with no response. He knew what school she attended, yet he made no effort to meet up with her there. He could not reasonably have assumed (prior to the police contacting him) that she did not want to see him again because, on his account, she had expressed an explicit desire to have sex with him again.
[109] Another reason why I do not believe Mr. Gordon’s version of the content of AB’s last text is because it is not plausible when considered in light of the almost contemporaneous Facebook messages that AB sent to Anna as soon as she arrived home that day. In those messages, AB states that she is “almost in tears”. She describes being “basically raped” by Mr. Gordon. She says that she “told him no” but he kept putting his hands down her pants and “tried again and again”.
[110] As noted earlier, these (prior consistent) statements by AB cannot be relied upon for the truth of their contents, but they are relevant to the issue of whether I accept Mr. Gordon’s evidence regarding the content of her last text message to him. The notion that, just minutes prior to sending those messages to Anna, AB was texting Mr. Gordon to propose that they “do it again” is too incongruent to be believed.
[111] Another part of Mr. Gordon’s testimony that I find to be incredible, based on the totality of the evidence adduced, is his insistence that he never penetrated AB’s vagina with his penis. He testified that he put his fingers inside her vagina prior to attempting sexual intercourse, but that his penis never entered her.
[112] The medical examination that was conducted in hospital later that night included a vaginal swab that was tested at the Centre of Forensic Sciences. AB’s underwear was also tested for the purpose of determining whether or not any lubricant from a pre-lubricated condom could be identified. Silicone oil was identified on both the underwear and the vaginal swab. Such oil may be found as a lubricant on pre-lubricated condoms.
[113] The record establishes that silicone oil is also found in some laundry products such as fabric softeners and in some cosmetic items, such as body creams, deodorants and hair and bath products. AB testified that she had not put any cosmetic products inside her vagina that day. Her evidence on this point was not challenged. Mr. Gordon testified that he did not touch AB’s vagina with his fingers after putting on the condom. The presence of silicone oil inside her vagina is consistent with vaginal penetration using a pre-lubricated condom and is not consistent with any other source in the circumstances of this case. There is no evidence that AB had sex with anyone else that day.
[114] I therefore reject Mr. Gordon’s testimony that he did not penetrate AB’s vagina with his penis after putting on a condom. I find that he downplayed the extent of the sexual activity in order to minimize the seriousness of his conduct, in the event that I conclude an assault occurred.
Analysis of AB’s Testimony
[115] AB testified in a forthright manner. During her cross-examination, she agreed that she did not sustain any bruises, scratches or other physical injuries as a result of the alleged sexual assault. She agreed that her clothing was not torn, stretched or damaged in any way, including her underwear and tights. She agreed that she did not scream or call out for help, she did not punch, scratch, bite or strike Mr. Gordon and he did not punch, bite, scratch or threaten her. She agreed that he did not pin her down on the ground and that they were standing throughout the entire incident. She agreed that she had possession of her cell phone throughout the incident and that Mr. Gordon did not take it away from her. She acknowledged that, when he was putting on the condom, she did not use that opportunity to run away, even though she knew he was going to try to have sexual intercourse with her.
[116] Defence counsel argued that these uncontested facts are inconsistent with AB’s account of a sexual assault and raise a reasonable doubt as to her credibility on the issue of consent.
[117] In my view, AB’s credibility is in no way diminished by the fact that she did not scream, try to physically fight Mr. Gordon or attempt to escape. To adopt defence counsel’s argument would be to subscribe to the sexist belief that “women are presumptively sexually accessible until they resist”. Ewanchuk, at para.97, per L’Heureux-Dubé, concurring.
[118] One of the most common myths about sexual assault is that a woman can prevent it if she really wants to, by screaming, struggling and physically fighting off her assailant, or by running or simply walking away. This myth has been discredited in the jurisprudence. R. v. Seaboyer, [1991] 2 S.C.R. 577, at para.141(1), per L’Heureux-Dubé, dissenting in part; R. v. M.M., [2011] EWCA Crim 1291, at para.38; R. v. A.R.J.D., 2017 ABCA 237 at para.52, aff’d (2018) S.C.C. 6.
[119] The absence of cuts, scratches and contusions on AB’s body is not circumstantial evidence of her consent. She was not required to risk sustaining physical injury by struggling or screaming in order to communicate her non-consent.
[120] Defence counsel argued that, when AB stood silently and watched Mr. Gordon put on a condom without attempting to leave -- despite realizing that he intended imminently to have sexual intercourse with her – her conduct amounted to consent. I disagree. Passivity or lack of resistance to physical sexual advances does not connote consent. R. v. Wylie, 2012 ONSC 1077 (S.C.J.), at paras.91(21); R. v. M.(M.L.), [1994] 2 S.C.R. 3 at para.2.
[121] There is no defence of implied consent to sexual assault. As Justice McLachlin (as she then was) wrote in Ewanchuk, at para.103, “The specious defence of implied consent … rests on the assumption that unless a woman protests or resists, she should be ‘deemed’ to consent…. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law.”
[122] AB was asked by Crown counsel whether she felt, at the time of the incident, that she could leave the alcove. She responded, “I didn’t feel like I could. He kept looking around, kept telling me there was nobody around. I figured he’d try to make me quiet if somebody came.”
[123] I note that, in AB’s statement to the police, which she adopted as her evidence-in-chief, she said that she felt “terrified”. During her cross-examination, she testified that she felt “frozen” and “scared”. It is also noteworthy that AB was 5’3” tall at the time and Mr. Gordon was 5’9”.
[124] Defence counsel argued that AB fabricated a false allegation of sexual assault and lied about the consensual nature of her sexual activity with Mr. Gordon because she feared negative reactions from her mother and her boyfriend Jamual.
[125] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered. R. v. Hughes, 2017 ONCA 814 (Ont. C.A.), at paras.4, 6-10. However, I must be cautious not to be mis-guided by stereotypical assumptions and discredited rape myths in assessing whether AB had a motive to lie about what happened.
[126] Female sexuality is routinely scrutinized and judged in our society. A woman’s sexual behaviour is often effectively monitored by the community and (depending on her age and cultural background) may also be monitored by her parents, brother, boyfriend and/or husband. As a result of this phenomenon, and because of the unfounded but pervasive view that sexual assault complainants are generally untrustworthy, an assumption is often made that, if a girl or woman says she was sexually assaulted, it must be because she consented to sex that she was not supposed to have, got caught, and now wants to get back into the good graces of whomever’s surveillance she is under. Seaboyer, at para.141(8), per L’Heureux-Dubé, dissenting in part.
[127] It would not be appropriate to draw a presumptive adverse inference regarding AB’s credibility based on this faulty sexist reasoning. Instead, a careful unbiased review and analysis of the evidence regarding the presence or absence of a motive to fabricate must be undertaken.
[128] AB’s mother testified that she had a “rule” about AB not being alone with a boy, especially an older boy. AB acknowledged that she was aware of the rule. She testified that she had not really broken the rule because she did not expect to be alone with Mr. Gordon when she agreed to meet him at the recreation centre. They were meeting in a public place and she thought one of his friends from the school yard earlier that day was going to be with him. Her evidence on this point is credible, given that Mr. Gordon’s friend had called her over and was standing beside Mr. Gordon when they discussed getting together later to “hang out”. In addition, AB texted Anna to join her and Mr. Gordon once she realized that they would be alone. However, she invited Anna because she felt bored and awkward, not because she wanted to comply with her mother’s rule. Moreover, she specifically defied her mother’s rule when she returned to the alcove after Anna left and remained there alone with Mr. Gordon for 10 to 15 minutes before any sexual touching began.
[129] It is clear from the evidence that AB was knowingly breaking her mother’s rule. However, there is no evidence that her mother was either aware of, or likely to find out about, her disobedience.
[130] AB’s Facebook messages to Anna show that she was initially afraid to tell her mother what had happened. She wrote that she was too scared to say anything to her mother, stating “I can’t” and “she’ll kill me.” During her testimony, AB explained that she was worried her mother would be mad at her, not for breaking the rule, but rather for not having done more to fend off Mr. Gordon and prevent the assault. I am doubtful of the credibility of this statement. Although AB may have worried that her mother would blame her, I believe that she worried her mother would be angry and would blame her precisely because she broke her mother’s rule.
[131] AB testified that she did not think she was “in trouble” when she arrived home that evening. Her mother confirmed that AB was not, in fact, in any trouble. Her mother did not know where she had been or with whom. AB testified that her mother would have had no way of finding out that she had been alone with Mr. Gordon unless she disclosed that fact herself. There is no evidence to contradict this statement and I find it to be credible.
[132] Taking all of the evidence into account, I conclude that AB had no incentive to fabricate a story about a sexual assault in order to avoid her mother’s wrath for breaking a house rule. If anything, she had an interest in not telling her mother about the alleged assault in order to conceal her disobedience.
[133] With respect to her boyfriend Jamual, AB testified that she had been dating him for 2 months. She acknowledged that she had not told him about her daily texting and phone calls with Mr. Gordon, and had not advised him that she was going to meet Mr. Gordon that day.
[134] Defence counsel argued that AB lied about being sexually assaulted by Mr. Gordon because she did not want Jamual to find out that she had consensual sex with another boy. Defence counsel also argued that AB effectively admitted to consensual sex with Mr. Gordon in one of her messages to Anna.
[135] In the Facebook messages, AB twice mentioned Jamual. She wrote, “if jamual finds out he will hate me forever.” She also wrote that she “just basically cheated on Jamual”. For the reasons set out below, I find that these messages do not constitute a prior inconsistent statement by AB that she consented to sex with Mr. Gordon, nor do they support an inference that she was motivated to fabricate a sexual assault allegation in order to preserve her relationship with Jamual.
[136] AB had no reason to fear that Jamual would find out she had been with Mr. Gordon, unless she told him herself. Mr. Gordon testified that he knew Jamual at the time, but that their friendship was not so close that they would discuss their personal relationships with girls. He stated that he did not know that AB was dating Jamual. AB testified that she was not aware Mr. Gordon and Jamual were acquainted. Her evidence on this point was not challenged.
[137] AB provided a rational explanation for her message about “cheating” on Jamual. She said she was experiencing “bad mixed emotions” in the immediate aftermath of the alleged assault. She felt that she could have done more to prevent it. This is reflected in her message that, “I just can’t believe I let it happen.” She testified that she was worried Jamual would be upset with her and would ask her why she did not call him or scream for help.
[138] I accept AB’s explanation that her feelings of self-blame, and her fear that Jamual would also blame her, are the reasons why she told Anna that she “basically cheated on” Jamual. She anticipated that Jamual would perceive her sexual interaction with Mr. Gordon as a betrayal because she “let it happen” and she worried that he would “hate her” as a result. In the context of the entire exchange of Facebook messages, it is not reasonable to interpret the expression “cheated on jamual” as an admission that she had consensual sex with Mr. Gordon.
[139] Based on the totality of the evidence, I do not believe that AB had a motive to fabricate a non-consensual scenario in order to avoid upsetting Jamual. She had not been “caught” with Mr. Gordon by Jamual, or by anyone who knew Jamual. She initially wanted to conceal what had occurred from Jamual, so it would have been illogical for her to fabricate and report to police a false story about a sexual assault by Mr. Gordon. Making a formal police report (which would trigger an investigation and potential prosecution) would only increase the likelihood that Jamual might find out about her previously undisclosed texts and phone calls with Mr. Gordon, as well as her decision to meet Mr. Gordon at the recreation centre that day.
[140] I conclude that AB had no obvious motive to fabricate the allegations. Absence of a motive to lie is not, however, determinative of a complainant’s credibility.
[141] Defence counsel attempted to impeach the credibility of AB’s testimony based on her prior inconsistent statements, specifically her Facebook messages to Anna that stated Mr. Gordon “tried” to put his penis inside her vagina and it “almost went in”, but “didn’t go in”. In the Facebook messages, AB twice told Anna that he did not succeed in penetrating her. In contrast, when she gave her statement to the police the next day (which she subsequently adopted as her evidence-in-chief), she said that she thought his penis entered her vagina once or twice, but not fully. During cross-examination and re-examination at trial, AB testified that Mr. Gordon’s first attempt at sexual intercourse was unsuccessful, but he tried again and ultimately penetrated her vagina twice.
[142] AB voluntarily provided the police with copies of her Facebook messages to Anna, even though she knew that they contained statements inconsistent with what she told the police. She was not compelled to produce them, yet made no effort to conceal them. When cross-examined about them, she readily admitted the inconsistencies and explained that she told Anna penetration had not occurred because she did not want Anna to know. She said that she did not feel comfortable disclosing that detail.
[143] Inconsistencies in a witness’s evidence on such a critical issue can be fatal to the witness’s reliability and/or credibility, but in this particular case, I do not believe that the inconsistencies in AB’s account of what occurred are indicative of an inability to recall pertinent details, or embellishment of details, or fabrication. Rather, on a careful review of the evidence as a whole, I conclude that the inconsistencies reflect a gradual incremental disclosure of the full extent of the sexual assault that she experienced.
[144] There can be no presumptive adverse inference drawn against AB’s credibility simply because she was not comfortable, in the first disclosure that she made immediately after the assault, to reveal that it included vaginal penetration. Piecemeal or selective disclosure is not necessarily indicative of falsehood. R. v. D.P., (ONCA) at paras.28-31. The content of AB’s messages to Anna reveal that she was still processing what had happened in her own mind. It is not surprising, in those circumstances, that she could not bring herself to tell Anna the full details of the trauma she had just experienced.
[145] Defence counsel argued that AB’s initial disclosure to Anna (i.e., that no penetration occurred) was truthful and her subsequent report to the police (that intercourse had taken place) was a false embellishment. There is no evidence that AB had a motive to embellish in that way. When she told Anna that no vaginal penetration had occurred, Anna did not treat the incident as trivial. Anna responded that AB could have Mr. Gordon “charged” for his criminal conduct. Anna encouraged AB to tell her mother and to consider reporting the incident to the police. If Anna had downplayed the seriousness of a non-penetrative assault, AB might have had a motive to embellish the details of what occurred, but that did not happen.
[146] I find no basis to question AB’s overall credibility or reliability as a witness. No corroborative evidence is required in order for me to accept her testimony as truthful, but I note that the results of the vaginal swab are consistent with her evidence that penetration occurred by Mr. Gordon’s penis while he was wearing a condom. Furthermore, her mother’s observation of her body language and facial expression when she arrived home corroborate her testimony that she was upset by the encounter with Mr. Gordon, which is consistent with her claim that it was not consensual.
Conclusion re: Consent
[147] I accept some portions of Mr. Gordon’s testimony. The events preceding the sexual contact are largely undisputed and Mr. Gordon’s account of them is probably accurate. I believe that he asked AB whether she was sexually active, either by text or in person that day (though I do not believe that he asked twice). I believe that he asked her whether he could insert his penis inside her vagina before attempting to do so. That fact is not in dispute. I also accept his description of putting on the condom, which was not contested by AB. I do not, however, believe Mr. Gordon’s exculpatory evidence relating to the consensual nature of the sexual touching that occurred, nor do I believe his testimony that he never penetrated her vagina with his penis. The presence of the silicone oil inside her vagina is unexplainable on his version of the events.
[148] The shifting nature of his testimony, the incongruence with other reliable evidence, and the improbability of key aspects of his account undermine the credibility of his assertion that AB consented. I find that his evidence regarding consent is incapable of belief and does not leave me with a reasonable doubt about whether she consented to the sexual activity. I am persuaded beyond a reasonable doubt that AB’s evidence is credible. Considering the totality of the evidence, I am left with no reasonable doubt as to her non-consent.
Mens Rea and Honest Mistaken Belief in Consent
[149] The Crown has met its burden of proving absence of consent beyond a reasonable doubt. The actus reus of both offences has therefore been established. In order to arrive at a conviction, however, the Crown must also prove the mens rea of the offences.
[150] The mens rea of sexual assault contains two elements: a general intention to touch (which is admitted in this case) and knowing or being reckless or wilfully blind to a lack of consent on the part of the person touched. Ewanchuk, at para.41-42.
[151] Defence counsel argued, in the alternative to the primary defence of consent to both charges, that Mr. Gordon did not possess the requisite mens rea because of an honest mistaken belief that AB was consenting.
[152] At this stage of the analysis, the issue of consent must be considered from the perspective of the accused, not the subjective mindset of the complainant. However, Mr. Gordon’s speculation about what was in AB’s mind is not relevant. The issue for me to determine is whether Mr. Gordon honestly believed that AB affirmatively communicated her consent through her words and/or actions. Ewanchuk, at paras.47-49.
[153] The fact that AB did not scream, punch, kick, bite or otherwise physically fight Mr. Gordon, or attempt to flee him, is not evidence of affirmative consent and cannot be used to raise a reasonable doubt about honest but mistaken belief in consent. As noted earlier, there is no defence of implied consent to sexual assault in Canadian law. It does not form the basis for mistaken belief in consent because that defence is grounded in a mistake of fact and not a mistake of law. Believing that failure to resist or passivity constitutes consent is a mistake of law and thus provides no defence. R. v. Dippel, 2011 ABCA 129, at para.21.
[154] Defence counsel relied on AB’s explanation that the reason she sent Mr. Gordon a text on her way home was because he appeared to think that “what had happened was ok”. She said he told her, before they left the recreation centre, that he would come to her school the next day and they could go to his house and do it again, and that he was acting as though no assault had taken place. She also testified that Mr. Gordon appeared to be “confused” during the incident. Defence counsel argued that this evidence amounts to proof of Mr. Gordon’s honest mistaken belief that she was consenting.
[155] I disagree. Although AB testified that she thought Mr. Gordon was confused during and after the alleged assault, a careful review of her testimony makes it clear that Mr. Gordon appeared confused to her about why she was not consenting, rather than about whether she was consenting. In my view, AB was being generous to Mr. Gordon when she described him as confused because he did not desist in the face of her unambiguous rejection of his sexual overtures. She testified that he must have been confused “or just really persistent”.
[156] Based on above-mentioned frailties in Mr. Gordon’s reliability and credibility as a witness, I reject his testimony that AB’s words and actions communicated affirmative consent to the sexual activity. I believe her testimony that she repeatedly told Mr. Gordon “no” and “stop”, pushed his hands away from her body, tried to push him off of her, and moved her body as much as possible to try to prevent vaginal penetration. I find that her conduct was neither equivocal nor ambiguous and certainly could not be interpreted as affirmative communication of consent.
[157] There is no credible evidence in the record that would give an air of reality to an honest mistaken belief in consent for any of the sexual activity that took place. Based on the totality of the evidence, I am persuaded beyond a reasonable doubt that Mr. Gordon knew or was wilfully blind to the fact that AB was not consenting to the sexual activity, because of her verbal objections and obstructive physical movements.
Conclusion
[158] I am convinced beyond a reasonable doubt that AB did not consent to the sexual touching that occurred, including sexual intercourse. I reject the defence of mistake. I am left with no reasonable doubt as to Mr. Gordon’s guilt. I therefore convict him on both charges.
Petersen J.
Released: May 8, 2018
COURT FILE NO.: CR-17-385
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TARRIQUE GORDON
REASONS FOR JUDGMENT
Petersen J.
Released: May 8, 2018
[^1]: This evidence regarding AB’s statements about her past sexual history was not admitted for a purpose prohibited by s.276(1) of the Criminal Code. The evidence is part of Mr. Gordon’s narrative of how the sexual encounter unfolded. It would have been prejudicial to the accused to exclude it. The evidence relates to issues raised by the Crown, such as whether AB and Mr. Gordon shared any intimate details about themselves prior to engaging in sex and whether there was any discussion of a sexual nature prior to the sexual activity. There was no objection to the admissibility of the evidence by Crown counsel and I was of the view that the evidence has significant probative value and could assist at arriving at a just determination of the issues. The evidence was adduced by Mr. Gordon. The complainant was not questioned about the statements attributed to her or about her sexual history. Admitting the evidence did not, in my view, prejudice her right of privacy, personal dignity or personal security. Section 276(3) of the Criminal Code.
[^2]: The “cloud” refers to data storage services that are accessed through the internet rather than locally on a cell phone or other electronic device.
[^3]: “It’s not your fault, what the fuck?”
[^4]: I don’t know