COURT FILE NO.: CR-17-0000568
DATE: 20180607
ONTARIO
SUPERIOR COURT OF JUSTICE
[Note: This proceeding is governed by publication restrictions under s. 271 of the Criminal Code.]
BETWEEN:
Her Majesty the Queen
– and –
William Dadson
Andrew Max, for the Crown
Rachel Lichtman, Counsel for the Defendant
HEARD: April 3-5, 2018
Koehnen J.
[1] In the summer of 2015 William Dadson saw an advertisement for a pair of knee pads on Kijiji. He thought they would be useful for his home renovation business. He responded to the advertisement which had been posted by the complainant, Ms. A. Mr. Dadson met Ms. A in front of her apartment building and purchased the kneepads for approximately $25. A few days later, the demolition crew that Mr. Dadson had hired for a project stopped being available. Mr. Dadson contacted Ms. A and offered her a job as a casual labourer. She accepted. After working together approximately three times, Ms. A and Mr. Dadson had sexual intercourse. Neither remembers the precise date. Both agree it was in August 2015. Ms. A says it was a sexual assault. Mr. Dadson says it was a consensual sexual encounter for money.
[2] A few weeks after the encounter, Ms. A went to a clinic for women victims of sexual assault and domestic violence. She knew of the clinic through her former life as a sex trade worker. Ms. A reported that she had been sexually assaulted and underwent a variety of tests for sexually transmitted diseases. Staff at the clinic encouraged her to report the assault to police. Ms. A did not report the assault to police until February 2, 2016 and met with police in late March 2016. In June 2016, Mr. Dadson was arrested and charged with sexual assault contrary to s. 271 of the Criminal Code, RSC 1985, c C-46.
I. FACTUAL ANALYSIS
[3] Both the Crown and defence agree that this case turns largely on credibility. The Crown called one witnesses: the complainant. The defence called two witnesses: Mr. Dadson and Officer Chaumont. The latter testified to one aspect of his interview with Ms. A. Resolution of the case depends upon whether, based on the evidence of Ms. A and Mr. Dadson, I am persuaded beyond a reasonable doubt that Mr. Dadson committed a sexual assault. As a result, I will analyse more closely below the evidence of each of Ms. A and Mr. Dadson as well as the submissions that the defence and Crown make with respect to each. For ease of reference I will analyse the evidence of each in the order in which the events occurred.
A. The Evidence of Ms. A
(i) Ms. A’s Presence at Mr. Dadson’s House
[4] Ms. A testified that, while working with Mr. Dadson he would sometimes be mildly sexually aggressive. She would rebuff him and things would return to normal. On the day in question Mr. Dadson made more forceful advances at the worksite which Ms. A firmly rebuffed. Mr. Dadson seemed contrite. At around mid-day Mr. Dadson discovered termites in the basement in which they were working. That meant they could do no further work until an exterminator dealt with the termites. He and Ms. A got into Mr. Dadson’s truck and ran errands. While they were in the truck Mr. Dadson asked whether Ms. A could help him fix a tile at his house. She agreed. When they arrived at Mr. Dadson’s house, Mr. Dadson asked Ms. A to wait in his room while he retrieved tools to fix the tile.
[5] Pausing at this point in the narrative, the defence argues that Ms. A’s presence in Mr. Dadson’s house is, at a minimum, enough to raise a reasonable doubt with respect to consent. The defence points out that Ms. A did not have to be convinced to go to his house. She willingly entered the house and willingly waited in his bedroom. Although she was supposedly uncomfortable while waiting in the bedroom, she did not leave.
[6] When defence counsel asked why she did not leave, Ms. A responded that she was in Scarborough, an area she thought was dangerous based on what she had heard and read in the media and an area she did not know. She had little if any money with her and did not know how to get to public transit from where she was. Defence counsel challenged this answer by pointing out that Ms. A could have found out exactly where she was by using the Google maps application on her phone and that she had no difficulty meeting strangers for construction jobs in various places throughout Toronto.
[7] Ms. A’s presence at Mr. Dadson’s house must be understood in the context of their relationship. Ms. A was Mr. Dadson’s employee. At the time of the incident at issue, Ms. A was 20 years old. Mr. Dadson was approximately 17 years older. Part of her job duties involved going to places Mr. Dadson told her to go. As Ms. A described it, she did not want to “step out of line” with her employer.
[8] Mr. Dadson agreed that he would tell Ms. A when and where to work, how to get there, what to do, when to run errands with him, when to go into the car with him and when she was done. He agreed that Ms. A accepted all of those instructions from him. He also agreed that accompanying him to his house was just like accompanying him on other business related errands.
[9] The suggestion that Ms. A’s discomfort was fabricated because she met others for construction jobs in various parts of the city is unwarranted. When she met others for such work, it was at a pre-arranged point, the precise location of which Ms. A could ascertain in advance. Moreover, Ms. A’s discomfort arose not from being on a construction job but from being asked to wait in Mr. Dadson’s bedroom which she found somewhat unusual. Whether this should have led her to leave also depends on the nature of her feelings. She did not describe her feeling as panic, fear or terror but simply as not wanting to be there.
[10] The defence suggestion that Ms. A should have left the house if she was uncomfortable is factually and legally problematic. Factually, nothing untoward had occurred while she was waiting in Mr. Dadson’s room. She may have felt uncomfortable but, at the same time, was sensitive about not stepping out of line with her employer.
[11] The suggestion that a victim of sexual assault has an obligation to flee either during, or in this case even before, the assault occurs “perpetuates archaic myths and stereotypes about the nature of sexual assaults [and] also ignores the law”: R. v. Ewanchuk 1999 711 (SCC), [1999] 1 S.C.R. 330 at para. 95. The law of sexual assault does not impose a requirement to flee, it imposes a requirement for consent. The critical issue is consent at the time of the sexual touching, not the failure to flee before it occurred.
[12] Moreover, criticism of Ms. A’s decision not to flee the scene before any assault occurred must be assessed in light of the circumstances at the time, not in light of a microscopically detailed analysis undertaken with the benefit of three years of hindsight. It is highly unlikely that a person in Ms. A’s position waiting in Mr. Dadson’s room would be engaging in a detailed, rational analysis in which she weighs all of the factors that might lead her to remain against all of the factors that might lead her to leave. It is far more likely that a person in that position would have fleeting thoughts of different sorts that were not the subject of detailed rational analysis at the time. In that light, the fact that a cross examiner may be able to reveal rational inconsistencies in Ms. A’s decision not to leave (like belittling the thought that some might perceive Scarborough as dangerous), should not be given undue weight, although it remains a piece of the overall mosaic of the case.
(ii) The Sexual Encounter
[13] According to Ms. A, when Mr. Dadson returned to the room he began speaking to her in a sexual way, pushed her down on the bed, pulled her pants down and had sexual intercourse with her. Ms. A does not recall the exact conversation that occurred before Mr. Dadson pushed her onto the bed. Ms. A was saying no and was telling Mr. Dadson that she had a boyfriend, but at a certain point, disassociated herself from the event. Ms. A has a history of mental health issues and disassociates to protect herself from traumatic events. During a disassociated state she occasionally forgets what happened.
[14] Following intercourse Ms. A says she allowed Mr. Dadson to drive her home.
[15] Ms. A says she never saw Mr. Dadson again after this encounter.
[16] The defence mounts four challenges to Ms. A’s description of the encounter.
[17] First, Mr. Dadson argues that Ms. A’s disassociation during the sexual assault raises at least a reasonable doubt if not more. He relies heavily on Ms. A’s testimony that she does not remember the actual sexual assault, that she sometimes loses touch with reality during episodes of disassociation, she occasionally forgets what happens during disassociation and that, to a certain extent this is what happened during the sexual encounter.
[18] These statements must be understood in the context of Ms. A’s overall testimony. There is no dispute that sexual intercourse occurred on Mr. Dadson’s bed. The issue is whether there was consent. Ms. A testified that she repeatedly said no to Mr. Dadson’s sexual advances in his bedroom and has a specific memory of doing so.
[19] Although she disassociated during the assault, she described her memory of it as having photographs or “screenshots rather than a full movie.” She specifically remembers being grabbed sexually, saying no, being face down on Mr. Dadson’s bed and Mr. Dadson thrusting inside her, although the latter is the part that she wants to make disappear most.
[20] Ms. A also remembers asking whether there wasn’t anything else they could do. It is possible that this phrase, standing on its own, could be viewed as a request for a consensual sexual act other than intercourse. Mr. Dadson did not say that he interpreted the request in this way and did not address the request in his testimony. The request could also be interpreted as a plea that an assailant not force intercourse on a victim but do something else instead.
[21] Ms. A described the request of whether there wasn’t anything else they could do as a request that Mr. Dadson wear a condom. As Ms. A described the context, it was not an expression of consent to have sex with a condom, but a statement to the effect that, if Mr. Dadson was going to force himself upon her, could he at least use a condom.
[22] Ms. A believes Mr. Dadson did not use a condom but that he withdrew before ejaculating.
[23] Ms. A also testified that, although disassociation might sometimes make her forget things, it does not make her fabricate things.
[24] According to Ms. A, she disassociates so that unpleasant experiences do not affect her. I accept that the act of disassociation could be seen as evidence of an assault. It could also be seen as evidence of consensual sex for money during which Ms. A disassociated because she found the act unpleasant, even if consensual. I view the disassociation here as evidence of the former. Ms. A was not shaken on cross-examination about her saying no to Mr. Dadson’s sexual advances despite vigorous efforts of defence counsel to do so.
[25] Second, Mr. Dadson argues that Ms. A’s failure to “raise” the alarm creates reasonable doubt. Mr. Dadson lived in a home that was part rooming house, part owner occupied. There were others in the house at the time of the encounter.
[26] Ms. A agrees that she did not raise the alarm but that, when it became clear to her that Mr. Dadson was not going to stop, she “took it and did not want to fight” because she feared that screaming or fighting would have led Mr. Dadson to do something “drastic”.
[27] The suggestion that Ms. A’s failure to raise the alarm or fight back provides evidence of consent or creates a reasonable doubt, risks pulling this court back into archaic sexual stereotypes. The suggestion that women who do not resist with forceful struggle are in fact consenting to sex was recognized as an outmoded stereotype and was rejected as having no reliability in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 at para. 141. The issue is whether there was consent, not why the complainant did not fight.
[28] Third, at one point in her testimony Ms. A said that Mr. Dadson had made her feel “like she wanted it or allowed it.” The defence asks me to infer from this statement that Ms. A consented or that it raises a reasonable doubt about consent. That submission would also drag this court back into archaic, stereotypical thinking. The Supreme Court of Canada has recognized that victims of sexual assault often experience feelings of guilt or self-blame and that such feelings, by themselves, are not evidence of consent: Seaboyer at para. 139; R. v. D. (D.) 2000 SCC 43, [2000] 2 S.C.R. 275 at paragraph 65.
[29] Sexual assaults do not all fall into the stereotype of a stranger jumping out of the bushes and overpowering their victim. Many if not most assaults are committed by people known to the complainant. The assaulter does not necessarily overpower his victim with aggravated violence. The circumstances are usually more nuanced in which the assaulter uses one or more of a combination of economic or social power, intimidation, fear, unspoken threats and a simple unwillingness to heed verbal or physical resistance, all in order to make the complainant feel that she “wanted it or allowed it”. The law requires that a potential sexual partner consent, not that she be immune from feelings of guilt or self-blame.
[30] Fourth, Ms. A testified that Mr. Dadson drove her home after the alleged assault. Mr. Dadson says he drove her to the subway. Regardless of the specific destination, the defence submits that Ms. A’s willingness to have Mr. Dadson drive her anywhere after the encounter is further evidence of consent. Ms. A says she let Mr. Dadson drive her because she thought that the general area in which she found herself was dangerous, she did not know specifically where she was, did not know where the subway was, had no money and just wanted to get home.
[31] That victims of sexual assault do not associate with their assailants after an assault is a further myth that has been dispelled by courts. While further contact is a potentially relevant factor to consider, is not determinative of consent. While it may be that immediate flight after a sexual assault can be seen as consistent with an absence of consent, allowing an assailant the victim knows to drive her home or to a subway in an area with which the victim is not familiar is not evidence of consent when considered together with the other circumstances of this case. There is no one way for victims of sexual assault to behave. Ms. A had no money, did not know exactly where she was and just wanted to get home. Given her circumstances and mindset, I draw no adverse inference from the fact that she allowed Mr. Dadson to drive her.
(iii) The Report to Chantal’s Place
[32] On August 20, 2015, Ms. A went to Chantal’s Place, a health clinic designed for women victims of sexual assault and domestic violence associated with the Mississauga General Hospital. At the clinic, Ms. A complained of a sexual assault and sought tests and possible treatment for pregnancy and sexually transmitted diseases. She returned for at least one follow-up appointment in early September.
[33] The defence mounts several challenges based on the visit to Chantal’s Place. First it challenges Ms. A’s credibility on the issue of timing. During cross-examination Ms. A said she visited Chantal’s Place no more than two weeks after the incident. The report prepared by Chantal’s Place records the visit as occurring three to four weeks after the incident. The police complaint Ms. A ultimately filed refers to the visit occurring one to two weeks after the incident.
[34] Ms. A admitted that she is poor with dates and often misses appointments as a result. I do not draw any adverse inference from the differences in the way Ms. A described the timing of the visit to Chantal’s Place on different occasions. This is not a case in which anything turns on whether the visit occurred one week after the incident or four weeks after the incident, apart from the fact that it occurred after the incident.
[35] The defence argues that the visit to Chantal’s Place was “an insurance policy” to document a fabricated assault without going to the police. According to the defence, payment for Ms. A’s construction and alleged sexual services was a live issue in August 2015. The defence argues that the report from Chantal’s Place provided Ms. A with a weapon to hold over Mr. Dadson’s head if he failed to pay her.
[36] I do not accept this theory. If the theory were valid, I would have expected Ms. A to use the report to extract money from Mr. Dadson. There is no evidence or suggestion that she told Mr. Dadson about the visit or the existence of a record in which she complained of a sexual assault.
[37] The Mississauga General Hospital was not the hospital closest to Ms. A’s home. As noted earlier, she knew of it from her prior life as a sex trade worker. There was some degree of inconvenience in going to Chantal’s Place. She attended on at least two occasions and underwent intimate, invasive tests. To undergo the inconvenience of attending at something other than a neighborhood hospital or clinic on two occasions for invasive medical procedures as an “insurance policy” for an alleged debt of approximately $160 for sexual services (if I accept Mr. Dadson’s evidence), amounts to a very high priced insurance policy.
(iv) Text Exchanges Shortly After the Encounter
[38] Shortly after the encounter Ms. A says she sent Mr. Dadson a text message, the gist of which was to ask Mr. Dadson for money for what had occurred. Included in the text message was language to the effect that people “used to have to pay her for what Mr. Dadson did to her” or, on Mr. Dadson’s evidence that she “usually charges for stuff like that.” While no specific sum of money was referred to at trial, I was left with the impression that it was an amount closer to an hourly rate than to an amount in the thousands.
[39] The defence submits that the request for money “screams out” to support a consensual arrangement of sex for money. In the words of defence counsel, “this whole case is about not getting paid.” The request for money after the incident is the strongest piece of evidence in support of Mr. Dadson’s defence.
[40] That text must, however, be understood in its proper context.
[41] Ms. A is not a sophisticated communicator. She was 20 at the time and was a former sex trade worker. She testified that, after the incident, she felt degraded, felt like she had been thrown back into the life of prostitution which she thought she had escaped and thought money would “make it better.”
[42] Ms. A likened the request, in her own words, to people going to court for money after being hurt and feeling better after getting money. In legal terms, a claim for damages. She later came to appreciate that money would not make her feel any better and did not matter in any event, because there was no money coming from Mr. Dadson.
[43] Neither party has produced the text in question. It appears that the application over which it was sent deletes texts after a particular period of time. Both Ms. A and Mr. Dadson changed their phones subsequently which made retrieval of certain texts difficult or impossible.
[44] R. v. Nyznik 2017 ONSC 4392, [2017] O.J. No. 4138 reminds us that there is no “normal” way to behave after a sexual assault. Ms. A’s reaction was to seek compensation for the harm she suffered as a result of the encounter. While she did not necessarily express it in the most sophisticated way at trial, a lack of sophistication in the way a complainant expresses things does not lead to an adverse finding against her. Similarly, the fact that a complainant may have a more modest or uninformed view of damages should not be held against her. Moreover, seeking compensation after the fact does not amount to retroactive consent to sex. There is nothing improper in the idea of financial compensation for an assault, sexual or otherwise.
[45] I do not agree with defence counsel’s theory that the unproduced text suggests consent. If this had been a consensual arrangement of sex for money, there would be no need for Ms. A to say that people used to have to pay to do what Mr. Dadson did or to say that she “usually charges for stuff like that.” The more plausible message in that circumstance would be something like “you still owe me $ X for the sex we had,” or, if Ms. A did not want to refer to sex in texts as Mr. Dadson testified, a message saying that he still owed her $X for her work the other day.
[46] I also do not agree with defence counsel’s theory that the whole case is about not getting paid. If in fact that were the case, I would have expected Ms. A to have raised the issue of money much more forcefully than she did both in the initial text message of which we do not have a copy and in later text messages of which we do have copies and which are discussed below.
(v) Texts in November 2015 and January 2016
[47] On November 1, 2015 Mr. Dadson initiated a text exchange with Ms. A at 5:57 p.m. which Ms. A produced from her archived texts.
[48] Mr. Dadson began the exchange by asking Ms. A how she was and how work was going. Ms. A responded with a one word answer: “good”. In the messages that followed in the next minutes, it became clear that Mr. Dadson did not know whom he was texting and that there may have been other women in his life with the same first name as Ms. A’s. It appears that Mr. Dadson had saved Ms. A’s coordinates on his phone under her first name.
[49] The texts of November 1, 2015, follow a pattern in which Mr. Dadson sent two or three messages before Ms. A responded with a terse answer. Ms. A refused to identify herself or send a picture. She sent her last message at 7:01 p.m. saying: “figure it out” (that is to say, if you don’t know who I am, figure it out). Mr. Dadson follows up with five additional messages the last one being sent at 9 p.m., none of which Ms. A answered.
[50] The exchange does not refer to Mr. Dadson owing Ms. A any money.
[51] Mr. Dadson initiated a new exchange of text messages on January 29, 2016, at 10:34 p.m. Those texts consist of approximately 2 pages of single spaced, typed messages.
[52] Ms. A’s responses this time are friendlier than those of November 1, 2015. After some initial exchanges in which there is still uncertainty about whether Mr. Dadson knows which Ms. A he is speaking to, he writes “Stop trying to bust my balls lol (laughing out loud)”. Ms. A responds “I never got that money you owe me maybe I should be breaking some balls lmao (laugh my ass off)”. A few more exchanges follow about whether Mr. Dadson is earning money, whether Ms. A is available to work, whether she could work that evening, whether she could come over and whether she could stay the night.
[53] According to Mr. Dadson this exchange was a further request on his part to have sex for money.
[54] According to Ms. A, this was a further unwanted pursuit by Mr. Dadson. This time Ms. A says she engaged Mr. Dadson as part of a plan to obtain his then current address so she could report him to the police. As part of that plan she pretended as if she were going to visit him. That was the bait to get his address.
[55] Ms. A says the reference to the money Mr. Dadson owed her was the money for the last day of construction work.
[56] After Ms. A obtained Mr. Dadson’s co-ordinates at 11:52 p.m., she stopped answering his messages. Mr. Dadson continued texting until 1:01 a.m. asking her whether she was close by. Mr. Dadson initiated further contact at 10:43 a.m. on January 30, 2016 with a simple “?”. Ms. A responded about two hours later saying:
“Thanks for the address the police are coming over to press charges I never consented to you touching me and you continued to harass me at work and took me to your house and raped me and now you’re trying to lure me back I’m having a restraining order put on you or something I should have never let this go.”
[57] Defence counsel was able to raise a number of issues/inconsistencies in Ms. A’s testimony on cross-examination with respect to the texts of January 29, 2016. Ms. A indicated that she developed the plan to get Mr. Dadson to reveal his address together with a friend who happened to be in Ms. A’s apartment at the time. Ms. A refused, however, to disclose any information about the friend including her name, what part of the city she lived in or even her hair colour. At one point during cross-examination Ms. A indicated that she told Mr. Dadson in the texts that she now lived at Jane and Finch because she wanted to frighten him by mentioning the scariest neighborhood she could think of and did not want Mr. Dadson to know that she was still at her old address. At a later point in the exchange she told Mr. Dadson that she was still at her old address. When challenged on this she explained that Mr. Dadson needed to know where she was so he could send her an Uber. She conceded, however, that the plan was never to have Mr. Dadson send her an Uber but to have her order one and take it to his place. Defence counsel also succeeded in raising inconsistencies about whether the “work” that Ms. A was being hired for in the January 29 texts referred to construction work or sex.
[58] Not all inconsistencies, however, are of equal importance and not all inconsistencies lead to the same conclusion. It is important to take any inconsistencies in context.
[59] The context here is that Ms. A received an unexpected text message at 10:34 p.m. on a Sunday evening which she decided to use to her advantage to get Mr. Dadson to reveal his current address so that she could give it to police. The overall tenor of the messages is consistent with this goal. Once Ms. A obtained Mr. Dadson’s address she stopped communicating. When Mr. Dadson followed up with her the next day, Ms. A revealed her plan, blocked any further texts from Mr. Dadson and reported the matter to the police on February 2, 2016.
[60] Whatever inconsistencies arose on cross-examination do not detract from Ms. A’s explanation of her underlying purpose. The text messages were exchanged in real time. When exchanging texts like this it is unlikely that Ms. A, or anyone else, would engage in a detailed, rational analysis which plans out every response to ensure complete consistency between all text messages. In addition, it is unlikely that anyone would remember at trial, the precise thought process they had when sending a particular one line text more than two and a half years earlier.
[61] The nature of the inconsistencies counsel elicited on cross-examination are consistent with the real-time nature of the texts and with Ms. A’s explanation of an overall plan which might not have been fully thought out or fully executed in every single text exchange.
(vi) Reasons for Late Reporting to Police
[62] Ms. A made an initial report to police on February 2 but either missed or re-scheduled appointments she had made with the police on February 7, 9, 20 and 29. She ultimately attended to file a formal complaint on March 25, 2016.
[63] At trial Ms. A provided a number of reasons for which she did not make an immediate report. At first she believed she could force herself to forget the incident by pushing it out of her mind. She was more concerned with taking care of herself physically than with a police report. She had a fear of and aversion to police because of her former life as a sex trade worker and was afraid that the police would simply dismiss her as a prostitute. She did not know Mr. Dadson’s last name. She was worried about her boyfriend’s reaction. She did not want a long drawn out court proceeding while dealing with her mental health issues. Mr. Dadson had not pursued her further.
[64] Eventually, however, Ms. A realized that she could not simply put the incident out of her mind. Moreover she became re-traumatized when Mr. Dadson sought to initiate contact with her in November 2015 and January 2016.
[65] Defence counsel submits that Ms. A’s explanation for why she did not go to the police had evolved over time. To establish this theory, the defence called Officer Chaumont, one of the first police officers to interview Ms. A. Office Chaumont was taken to a part of his notes which record Ms. A telling him that “she used to be a prostitute and was afraid to call the police.” He confirmed that this is often the case with sex trade workers. The defence submits that the larger number of reasons that Ms. A gave at trial for her late reporting was inconsistent with what she told Officer Chaumont.
[66] I disagree and do not see any inconsistency.
[67] Officer Chaumont simply testified that Ms. A told him she “used to be a prostitute and was afraid to call the police.” He did not say that that this was the answer she gave in response to a question that asked her to provide all the reasons for which she did not make an earlier police report. He did not even say that this was why Ms. A did not report earlier, let alone that it was the only reason she gave for not reporting earlier. There was simply no context to his evidence on this point. If the defence wants me to attribute a certain context to Officer Chaumont’s evidence, that context should have been elicited during examination in chief.
[68] The defence also tried to establish inconsistencies in the reasons Ms. A gave at trial for her late report.
[69] Although one reason for her late report was that Ms. A said she did not know Mr. Dadson’s last name, she agreed on cross-examination that she had access to his surname through records of an electronic funds transfer he made to her and through records of the first text he sent her in July or August 2015. Ms. A maintained that she did not become aware of the ability to access this information until much later. At a later point in cross-examination she said that she probably knew Mr. Dadson’s surname in November but did not report him because she did not have his address and was naïve about reporting to police. This admission does not go to the overall credibility of Ms. A’s evidence, especially in light of her explanation that what finally pushed her to report was Mr. Dadson’s second attempt to resume contact in January, 2016.
[70] Even after Ms. A made an initial report to the police on February 6, she delayed meeting the police on February 7, 9, 20 and 29. She did not attend a police interview until March 25, 2016. According to Ms. A she often misses appointments because of issues with her memory. She is definitive, however, that her memory issues may lead her to forget appointments but do not lead her to fabricate memories. In addition, she still needed more time to determine whether she really wanted to go through the difficulty of a court proceeding.
[71] Drawing an adverse inference against Ms. A because of late reporting would drag this court back into archaic thinking that the Supreme Court of Canada has definitively dismissed as erroneous. As already noted, there are no rules about how victims of a sexual assault are supposed to behave. Some will make an immediate complaint, others will delay, still others will never disclose the assault. There are many reasons for delay including embarrassment, fear, guilt, a lack of understanding, fear of continuing the trauma by being forced to relive it through police investigations or trial, a lack of desire to report because of depression, self-blame or loss of self-esteem: R. v. Seaboyer 1991 76 (SCC), [1991] 2 S.C.R. 577 at para. 139; R. v. D. (D.) 2000 SCC 43, [2000] 2 S.C.R. 275 at paragraph 65.
[72] In addition to some of the issues described above which the defence characterizes as inconsistencies in Ms. A’s evidence, the defence also focused on a potential inconsistency about Ms. A reporting the incident to her boyfriend. Ms. A initially stated that she had not told her boyfriend immediately but that her boyfriend was aware of the incident before November 1, 2015 when Mr. Dadson tried to resume text contact. At another point, Ms. A said that after the sexual encounter, she went home, had a shower and went to sleep. When she woke up her boyfriend was there and “[she] couldn’t keep it away from him, [she] was crying and he did not know why.”
[73] It is unclear whether this means that she actually told her boyfriend about the incident the night it occurred or whether this meant she could not keep the emotional impact of the incident away from him and that she was crying without her boyfriend knowing or learning why. There is nothing implausible about her boyfriend finding her crying without knowing why. Even if this did amount to an inconsistency in the evidence about when she told her boyfriend, it does not lead me to doubt Ms. A’s evidence about the alleged assault. The precise dates on which things occurred in 2015 are not at issue here. Ms. A conceded that she is not good with dates.
[74] Finally, with respect to the issue of late reporting, the defence suggested disparagingly that Ms. A had too many reasons for failing to report immediately. I do not accept that suggestion. The effects of a traumatic event are complex. There would rarely be a single reason for a victim of a sexual assault to act as she did. The nature and effects of a sexual assault are simply too complex to reduce subsequent behaviour to a single factor.
(vii) Credibility Assessment
[75] Defence counsel submits that I should prefer Mr. Dadson’s evidence over Ms. A’s. She describes Ms. A’s evidence as an angry, defensive, mass of stories, replete with lies and cover-ups.
[76] I do not accept that characterization of Ms. A’s evidence.
[77] In my view, Ms. A was a credible witness.
[78] I agree that she was not always as calm as Mr. Dadson. At the same time, she was measured and controlled given the subject matter and nature of the cross examination. I would not describe her as angry although she clearly was upset at the events that had occurred. I agree that she sometimes reacted a bit defensively when counsel exposed an inconsistency on cross-examination.
[79] Before ascribing a lack of credibility to intermittent, mild defensiveness on the part of a witness, we need to put ourselves into the shoes of the witness. Ms. A had no apparent experience with lawyers or the justice system. She was being challenged aggressively on events which she described and experienced as a sexual assault. At several points she was in tears. When testifying about the sexual encounter she would rock back and forth. The rocking began gently as questions approached the sexual encounter, intensified during her testimony about the encounter and dissipated as questions moved away from the issue. The reaction built up and dissipated gradually during examination in chief, cross-examination and re-examination. It appeared genuine. That said, I am mindful of not ascribing undue weight to demeanour.
[80] When a true victim of a sexual assault testifies and is made to feel belittled because she cannot remember whether she visited a clinic one week or three weeks after the assault or about precisely when she told her boyfriend about the assault, I would expect that a majority of victims would be frustrated that the cross-examiner was focusing on things that were irrelevant to the victim instead of focusing on the assault. This is not to criticize defence counsel. She was fully entitled to develop inconsistencies in the complainant’s evidence. It is simply that a lay victim may not understand why defence counsel is doing what she is and may be frustrated by the process. Frustration is a genuine emotional reaction that stems from a lack of understanding, not a lack of credibility.
[81] While I agree that cross-examination elicited some inconsistencies in Ms. A’s evidence, they fell into the realm of what I would expect a competent cross-examiner to be able to establish with pretty much anyone. The inconsistencies did not undermine the essence of Ms. A’s evidence.
[82] If I apply a broad definition of the concept, the “inconsistencies” that defence counsel raised concerned issues like whether Ms. A could/should have fled Mr. Dadson’s home, perhaps by looking for transit on her phone’s Google maps application, whether accepting a drive from Mr. Dadson after the incident is consistent with assault or consent, whether she told her boyfriend about the alleged assault the night of or at some later point, whether the suggestion of money after the incident was a request for payment or a demand for damages, whether she went to Chantal’s clinic one week after the encounter or several weeks after the encounter, whether she was with a friend or alone when she responded to Mr. Dadson’s texts in January 2016, whether she or Mr. Dadson was supposed to call an Uber in January 2016 or whether her reasons for late reporting evolved over time.
[83] Defence counsel submitted that inconsistencies in Ms. A’s evidence do not have to be about the assault to be meaningful but conceded that I can ascribe different weight to different types of inconsistencies.
[84] I would ascribe little or no weight to the “inconsistencies” developed on cross-examination. As noted earlier, some of these alleged inconsistencies are not inconsistencies at all but are matters on which I have a different view of the evidence and/or with respect to which Ms. A had a credible explanation. Others are issues on which the cross-examination was not sufficiently clear to establish an inconsistency. Still others invite me to apply archaic stereotypes to sexual assault and the way in which victims of sexual assault are supposed to behave.
B. The Evidence of Mr. Dadson
(i) Summary of Mr. Dadson’s Account
[85] Up until the day of the first encounter, Mr. Dadson’s and Ms. A’s accounts are relatively similar except that Mr. Dadson disagrees that there was any sexual touching on job sites.
[86] On the day of the first encounter Mr. Dadson says there was flirting and sexual excitement between them at the jobsite.
[87] When they discovered termites and could no longer continue the renovation, Mr. Dadson says he asked Ms. A whether she wanted to go to his house. He denies telling her that there was a tile to fix there. While he did not suggest sex at the time, he says that the sexual excitement between the two of them made it obvious what they were going to his house for.
[88] Once both were in his car, Mr. Dadson says the conversation turned to sex. According to Mr. Dadson, Ms. A told him that she was a former sex trade worker.
[89] In the drive to Mr. Dadson’s home, he says that Ms. A set out the rules for their sexual encounter. There would be no kissing, her boyfriend was not to find out, Mr. Dadson was to drop her at home afterwards, she would determine the sexual positions they used and Mr. Dadson was would use a condom.
[90] Mr. Dadson testified that he never agreed to pay for sex on the first encounter nor was there any request for payment. Instead, Mr. Dadson says he agreed to pay Ms. A for a full day’s work even though she had only worked half a day. He did so because she used to be a sex trade worker and appeared to expect something for it.
[91] Mr. Dadson says he used a condom but nevertheless withdrew before ejaculating as Ms. A had requested.
[92] According to Mr. Dadson, Ms. A never said “no” to the encounter. He described the sex as impersonal and described Ms. A as not emotionally connected during the sex. At the end of the encounter, Mr. Dadson drove her to the subway, not home, and gave her half of the money he had. This was less than the full day’s work that he owed her. He agrees he never paid the balance.
[93] According to Mr. Dadson, he met Ms. A again one or two days later for a second sexual encounter for which he agreed to pay between $100 and $120. At that point he had not paid Ms. A the balance owing for the work/sexual encounter of a day or two earlier. He never paid Ms. A for the second encounter.
[94] Mr. Dadson says there are a string of text messages between himself and Ms. A which preceded the text messages of November 2015 in which Ms. A confirms that the sexual encounters were consensual, were about money and were matters about which her boyfriend was not supposed to find out.
(ii) Factors Relevant to Credibility Assessment of Mr. Dadson
[95] The defence asks me to prefer the evidence of Mr. Dadson over that of Ms. A. The defence submits that Mr. Dadson was calm, logical, reasonable, credible and not argumentative when testifying. His version of events, says the defence, made sense.
[96] I agree that Mr. Dadson was calm, appeared reasonable and was not argumentative when testifying. Courts have, however, been cautioned not to ascribe too much weight to demeanour. Demeanour is often more a reflection of life experience, cultural background, personal skill set and individual personality than it is a reflection of credibility.
[97] The importance of this caution was clearly demonstrated at trial when a recording of Mr. Dadson’s interview with police was played.
[98] The interview made it abundantly clear that Mr. Dadson was under no obligation to speak with the police, but did so nevertheless.
[99] In his police interview, Mr. Dadson denied knowing Ms. A, denied ever having met with Ms. A, denied ever having worked with Ms. A, denied ever having hired a woman for his business, asserted that he hired only skilled trades for his business, denied having ever hired a general labourer, and denied ever having hired a woman as a general labourer. Each of these statements was a lie. He had in fact done each of the things he denied doing. Mr. Dadson delivered each of these lies with the same calm, seemingly reasonable, non-argumentative demeanour with which he testified at trial.
[100] To me the recording demonstrates that the only thing I can draw from Mr. Dadson’s demeanour at trial, is that he is able to communicate outright lies in a very persuasive manner.
[101] Mr. Dadson’s only explanation for his series of lies to the police was that he had no idea he was going to be arrested and that when he was arrested, he was told he would not be seeing his family for a long time.
[102] Mr. Dadson did in fact have or should have had an idea that he might be arrested. Ms. A told him in the text of January 30 that she was reporting him to the police. I can draw little comfort from his explanation that he lied because he was told he would not see his family for some time. If that was Mr. Dadson’s reason for lying to the police in June 2016, it would apply with equal force to his evidence at trial.
[103] I appreciate that simply because Mr. Dadson lied to the police does not necessarily mean that he was lying at trial. Innocent people may lie to the police for a variety of reasons. The simple fact that they lied to police should not result in a conviction. That said, Mr. Dadson’s ability to lie to the police in a calm, reasonable and persuasive manner does lead me to conclude that I cannot place any weight at all on his demeanour at trial. In addition, his willingness and ability to lie to police does leave me with concerns about his credibility but they are not concerns which, standing alone, would lead to a conviction.
[104] A further factor potentially relevant to the assessment of credibility between Ms. A and Mr. Dadson is Mr. Dadson’s criminal record. He has several older convictions. In 1990 (when he was 14) he was convicted on three counts of mischief, one of failure to comply with his own recognizance, and one count of breaking and entering. In 1993 he was convicted for theft over $5,000. In 1999 he was convicted of assault. Given the length of time that has passed since these convictions, I have not given them any weight in my assessment of Mr. Dadson’s credibility.
(iii) Rational Gaps and Inconsistencies in Mr. Dadson’s Evidence
[105] Although Mr. Dadson submits that his sexual encounter(s) with Ms. A involved consensual sex for money, he also said he never expressly agreed to pay Ms. A for sex on the first encounter. Instead, during the drive to his house, he volunteered to pay her for a full day of work because he had the impression that she expected to be paid for sex because she was a former sex trade worker. There does not appear to have been any express conversation about a price or an amount of time. If this were in fact consensual sex in exchange for money as Mr. Dadson asserts, one might have expected that the transactional nature of the sexual encounter would have been established upfront and a specific amount agreed upon in advance.
[106] The offer to pay for a full day’s work would, however, be expected given that Ms. A had been asked to work for a full day and that she was still working by helping Mr. Dadson fix a tile.
[107] Although Mr. Dadson says there had been sexual excitement between them at the worksite, he described the sex as impersonal and described Ms. A as not being emotionally connected during sex. Had there in fact been the sexual flirtation and excitement at the workplace that Mr. Dadson claims, one would have expected Ms. A to be more personally and emotionally connected during sex. If the inference from the lack of personal and emotional connection is that this was sex for money, then one night have expected a more explicit discussion about money and time up front.
[108] Mr. Dadson says that Ms. A explained afterwards that the lack of emotional connection was simply the way she was from her past. That means, however, that Mr. Dadson had no explanation for Ms. A’s detachment while sex was occurring. Mr. Dadson was approximately 17 years older than Ms. A and was her employer. An employer who insists on having sex with a significantly younger employee and experiences the sex as “impersonal” might stop to ensure that the employee was in fact consenting.
[109] Two weeks before trial, Mr. Dadson swore an affidavit for use on the s. 276 application he brought at the outset of trial. His evidence at trial differed from that in his affidavit.
[110] At trial, Mr. Dadson stated that there was no foreplay at the job site before he and Ms. A went to his home. In his affidavit he stated that they began to engage in sexual foreplay at the job site. At trial Mr. Dadson said that during the first sexual encounter with Ms. A they switched positions to stop the bed from making noise. In his affidavit he described that event as occurring during the alleged second sexual encounter with Ms. A, not the first.
[111] While the inconsistencies between his trial evidence and his affidavit do not go to the heart of the consent issue, they are more closely connected to the actual assault allegations than are any inconsistencies that emerged during Ms. A’s cross-examination. They are especially troubling given the short two week span between swearing the affidavit and the commencement of trial.
[112] The difference in Mr. Dadson’s evidence about whether the change of positions occurred during the first or the second encounter weakens Mr. Dadson’s evidence about whether there was a second encounter at all.
[113] A further question arises with Mr. Dadson’s evidence in connection with the alleged second sexual encounter. Mr. Dadson agrees that he did not pay Ms. A fully after the first sexual encounter but gave her approximately one half of the money he had. He did not specify the amount. Yet Mr. Dadson says that a few days later Ms. A agreed to a second sexual encounter for money, even though she remained unpaid for the first.
[114] While one might be prepared to accept a willingness to engage in a second sexual encounter had there been some degree of affection or sexual pleasure on the part of Ms. A, Mr. Dadson’s own evidence suggests there was none. If it was a sex for money arrangement it seems less likely that Ms. A would return for a second sexual encounter when she had not yet been paid for the first.
[115] The defence submits that this case is all about money and that Ms. A fabricated a charge of sexual assault only when it became clear that Mr. Dadson would not pay.
[116] I reject that theory because there are several material inconsistencies between it and the undisputed facts, especially as evidenced in the text exchanges between Ms. A and Mr. Dadson.
[117] As noted above, Mr. Dadson first tried to re-initiate contact with Ms. A in November, 2015. If this case were about money, one would have expected Ms. A to raise money at that time. She did not. Instead, she gave terse answers and stopped communicating after a few exchanges.
[118] In his text of January 30, 2016, after Ms. A had disclosed her plan to go to the police, Mr. Dadson responded:
“You’re crazy and that’s not my address and I have you in saved texts saying that you usually charge for stuff like that.”
[119] As noted earlier, the idea of Ms. A writing to say she “usually charges for stuff like that” is inconsistent with consensual sex for money. If it had been a sex for money arrangement it would be unnecessary to say “I usually charge for stuff like that.” A more plausible follow up to a sex for money arrangement would be something along the lines of a reminder that there had been an agreement to pay and the amount at issue.
[120] The phrase in question is more consistent with Ms. A’s explanation of a request for compensation akin to damages than it is with Mr. Dadson’s evidence.
[121] Mr. Dadson says that one of Ms. A’s rules was that he should never text her anything about sex. At the same time, Mr. Dadson claims that Ms. A sent him text messages shortly after the encounter which allegedly talk about the encounter being consensual, the encounter being for money and about the need for her boyfriend not to find out about the encounter. Mr. Dadson described their being “multiple, multiple” texts of this sort. Texts of that sort would be inconsistent with Ms. A’s instruction to Mr. Dadson never to text about sex.
[122] What Mr. Dadson described as the “multiple multiple” saved texts from Ms. A would presumably help his defence. On January 30, 2016 Ms. A told him that she would be reporting him to the police. If there were such texts, one might expect Mr. Dadson to print them or otherwise retrieve them to ensure that they were accessible so that he could show them to the police. Mr. Dadson did not do so. At trial he said that his statement on January 30, 2016 about having saved texts was not true.
[123] There was some evidence at trial that the WhatsApp application over which Ms. A and Mr. Dadson communicated, deletes texts after a certain period of time. The precise time after which texts are deleted was not specified at trial. It was also unclear whether texts which were deleted from the user’s phone would be available through the application provider or telephone service provider while the user retained the phone and phone number over which the texts were exchanged.
[124] Mr. Dadson changed his phone and phone number in March, 2106. He did so without even trying to safeguard the texts at issue and without contacting the service provider to see if those texts could be retrieved if they had in fact been deleted from his phone. He failed to make any such effort even though Ms. A had told him on January 30, 2016 that she was reporting him to the police.
[125] At trial, Mr. Dadson testified that, after he was arrested, he emailed WhatsApp to retrieve the texts but was told that they could no longer be retrieved because he had changed his phone and phone number. Mr. Dadson has not produced that email exchange.
[126] At the same time, I note that Ms. A has not produced the earlier texts either and did not testify to any efforts on her part to retrieve those earlier texts.
[127] In furtherance of the defence’s sex for money theory, Mr. Dadson submits that the text messages and Ms. A’s delay in reporting to and meeting with the police were designed to give Mr. Dadson more time to pay. When he did not pay, the defence argues that Ms. A fabricated the allegation of sexual assault and pressed charges. There are a number of problems with this refinement of the sex for money theory.
[128] First, although Mr. Dadson testified, he did not say that he interpreted the text messages as a threat to report him if he failed to pay. Mr. Dadson said that when he received Ms. A’s last messages he was scared that the police would arrest him or that Ms. A would send her boyfriend, whom Mr. Dadson had described as a dangerous character, to his house. If Mr. Dadson had in fact interpreted the underlying disagreement as one about money, I would have expected him to re-direct the conversation from the police to payment of whatever debt he says he owed Ms. A. He never did so.
[129] Second, if it were a demand for money there would be no reason for Ms. A to block Mr. Dadson’s text messages on January 30, 2016.
[130] Third, at 11:41 PM on January 29 Mr. Dadson said he would get paid the next day. Had payment been the objective, Ms. A could simply have made arrangements to have him transfer money the following day. If as, Mr. Dadson suggests, Ms. A was trying to get further construction work or sex trade work from him in the texts, Ms. A could simply have deferred such work until she was paid on January 30 for the services she had performed in August. Instead of making arrangements to get paid on January 30, Ms. A revealed her plan to report Mr. Dadson to the police on January 30.
[131] The combination of rational gaps in Mr. Dadson’s evidence, the inconsistencies between his trial evidence and his affidavit, inconsistencies between his trial evidence and his texts with Ms. A and his outright lies to the police lead me to reject his evidence entirely and prefer Ms. A’s evidence over that of Mr. Dadson.
II. Has Crown Proved Its Case beyond a Reasonable Doubt?
[132] My rejection of Mr. Dadson’s evidence and my acceptance of Ms. A’s evidence does not end the matter. I must still examine the evidence that I do accept to determine whether the Crown has proved Mr. Dadson’s guilt beyond a reasonable doubt and must determine whether Mr. Dadson’s evidence has raised a reasonable doubt even though I have rejected it.
[133] To prove sexual assault, the Crown must satisfy me about three elements of the actus reus: That Mr. Dadson touched Ms. A. That the touching was of a sexual nature and that Ms. A did not consent to the touching: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at para 24 – 26, 29 – 30.
[134] Mr. Dadson concedes that there was touching of a sexual nature. The issue is therefore whether the Crown has established beyond a reasonable doubt that Ms. A did not consent. Consent or lack of it exists in the mind of the person being touched at the time of the sexual touching.
[135] If I accept Ms. A’s testimony that she did not consent, the absence of consent is established even if her conduct strongly contradicts the claim of no consent: Ewanchuk at para. 31. I accept Ms. A’s evidence to the effect that she did not consent. She testified that she said no to Mr. Dadson several times. She denied that she had ever agreed to sex with Mr. Dadson.
[136] I turn then to the mens rea of sexual assault. It has two elements. First an intention to touch. Second knowing of or being reckless or willfully blind to a lack of consent on the part of the person touched: Ewanchuk at para. 42-43. The inquiry in this regard is to determine whether the complainant said “yes” either expressly or through unambiguous affirmative conduct. The mens rea of sexual assault can be satisfied when it is shown that the accused knew the complainant was essentially saying no or when it is shown that the accused knew that the complainant was essentially not saying yes: R. v. Barton at para 225.
[137] In my view, the Crown has established mens rea beyond a reasonable doubt. I accept Ms. A’s evidence that she said no to Mr. Dadson. I have rejected Mr. Dadson’s evidence in its entirety, including the sex for money theory and his evidence about the rules that were to govern sexual contact between them at Mr. Dadson’s house. I find that Mr. Dadson simply refused to accept Ms. A’s “No” and was reckless or willfully blind about whether Ms. A consented. He was simply not willing to take no for an answer and continued to push himself upon Ms. A. While it may be that violent force might have caused him to stop, the law does not require violent force. The law requires evidence of positive consent. I am satisfied that, based on the evidence I have found credible, the Crown has proven beyond a reasonable doubt that there was no evidence of either actual consent or conduct that would be sufficient to establish an honest mistaken belief about consent.
[138] After Ms. A said no, she eventually submitted without further protest. At best, Mr. Dadson appears to have inferred from her silence and passivity from that point forward that she was consenting or that the circumstances were sufficiently ambiguous for him to assume she was consenting. The law is clear that silence, passivity or ambiguous conduct does not amount to consent and offers no defence: Ewanchuk at para. 19. Even if I accept Mr. Dadson’s evidence about Ms. A setting the rules of sexual conduct between them in the drive to his house (which I do not), once Ms. A said “No”, Mr. Dadson was not entitled to proceed any further until he established that Ms. A was in fact consenting. He was not entitled to rely on a lapse of time or to engage in further sexual touching to “test the waters”: Ewanchuk at para. 52.
[139] Although I have rejected Mr. Dadson’s evidence, I have also considered whether it raises a reasonable doubt about his guilt. I have concluded that it does not. The same issues of credibility, inconsistencies and logical gaps that led me to reject Mr. Dadson’s evidence weaken his version of events to such a degree that it does not raise any reasonable doubt in my mind.
Conclusion
[140] I accept the evidence of Ms. A about the events at Mr. Dadson’s house. I do not accept Mr. Dadson’s explanation of those events. I am persuaded beyond a reasonable doubt that there was a single sexual encounter between Ms. A and Mr. Dadson, a sexual encounter to which Ms. A did not consent and with respect to which Mr. Dadson knew that Ms. A was not consenting or in respect of which he was reckless or willfully blind about Ms. A’s consent. I therefore find William Dadson guilty of sexual assault contrary to s. 271 of the Criminal Code.
Koehnen J.
Released: June 7, 2018
COURT FILE NO.: CR-17-0000568
DATE: 20180607
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty The Queen
– and –
William Dadson
REASONS FOR JUDGMENT
Koehnen J.
Released: June 7, 2018