ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-3953

DELIVERED ORALLY: September 5, 2018

BETWEEN:

HER MAJESTY THE QUEEN

– and –

William Scott Ladouceur
Accused

Brian Manarin, for the Crown

Frank Miller, for the Accused

HEARD: June 4, 5, 6, 7, 8 and 18, 2018

REASONS FOR JUDGMENT[^1]

Munroe J.:

[1] This case concerns assaults and abuse during the final weekend of a relationship. There was admitted violence by the accused against his then girlfriend on both Friday and Saturday. The major issue concerns the sex that took place in a car on an isolated, rural road about two hours after Saturday’s violence. The defence says it was consensual “make up” sex. The Crown says it was sexual assault. What happened in that car? More importantly, has the Crown proven it was sexual assault?

[2] The accused, William Scott Ladouceur, is on trial for sexually assaulting E contrary to Section 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He is on trial for what the complainant says happened in that car: oral and vaginal sex without her consent. Only two people were in that car thus making credibility and reliability major issues. Other evidence, notably the events leading up to and following that darkened road event, bear on the key assessment of credibility and reliability.

[3] I am not here to choose which version I prefer. I am here to judge a criminal case according to the law. Before me is a very serious allegation against this young man. I am here to solemnly and justly decide whether the Crown has proven, beyond a reasonable doubt, that this young man sexually assaulted the complainant in that car without her consent.

PROCEDURAL HISTORY

[4] A brief review of the procedural history is necessary to better understand the issues.

[5] Mr. Ladouceur is charged in a four count indictment as follows:

Count 1: “That he on or about the 20^th^ day of May, 2016 … did commit an assault on [E] contrary to Section 266 of the Criminal Code of Canada.”

Count 2: “That he on or about the 21st day of May, 2016 … did commit an assault causing bodily harm on [E] contrary to Section 267 of the Criminal Code of Canada.”

Count 3: “That he on or about the 21st day of May, 2016 … did commit a sexual assault on [E] contrary to Section 271 of the Criminal Code of Canada.”

Count 4: “That he on or about the 21st day of May, 2016 … did commit mischief by wilfully damaging without legal justification or excuse and without colour of right property, namely the vehicle stereo, visor, and mirror of [E], the value of which did not exceed $5,000, contrary to Section 430(4) of the Criminal Code of Canada.”

[6] At his arraignment on the commencement of trial, Mr. Ladouceur entered pleas of not guilty to all four counts. The trial proceeded.

[7] At the close of the Crown’s case, on the fourth day of trial, Mr. Ladouceur changed his pleas to guilty with regard to Counts 1 and 2, the assault and assault causing bodily harm charges. During the ensuing colloquy pursuant to s. 606(1.1), Criminal Code, Mr. Ladouceur admitted all the essential elements of both crimes but, with regard to the assault causing bodily harm charge, and through counsel, he denied he struck E as many times as she claimed in her trial evidence. Crown counsel did not accept the accused’s version thus requiring evidence and findings pursuant to s. 724(3)(e), Criminal Code, and R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, before the more aggravating Crown’s version can be accepted at sentencing. Both counsel agreed that the Gardiner hearing could proceed together with the continuing trial.

[8] The trial thus continued on Counts 3 and 4, the sexual assault and mischief accusations, as well as the nature and extent of the assaults in Counts 1 and 2.

[9] With regard to the mischief charge, during his evidence Mr. Ladouceur admitted damaging only the visor of the complainant’s car and at a time different from that adduced in the prosecution’s evidence. In submissions, the defence neither argued for acquittal, nor admitted guilt, on the mischief charge. As a consequence, Mr. Ladouceur’s plea of not guilty as to that offence stands.

FACTS

[10] Evidence was taken at trial over 6 days. Submissions were held on the sixth day. The court heard from six witnesses called by the Crown. The defence elected to call evidence from the accused. Two exhibits were entered which were photographs mostly from the police and some from the hospital. Almost all were of the injuries to the complainant. Some were of the alleged damage to the car.

[11] My review of the facts is limited to those of significance to either context or to the guilt or innocence issue. Much is uncontested. I will note the contested facts.

A. Background

1. the complainant

[12] On May 20 and 21, 2016, E was 22 years of age. At trial she was 24. She has a fraternal twin sister, H. They were brought up by their parents in a rural, wooded home in the county. In May of 2016, E worked as an aesthetician doing nails at a spa. Her sister worked as a dental assistant.

[13] Physically, E was 5’4” tall and about 140 pounds.

2. the accused

[14] On the days of these events, Mr. Ladouceur was 23 years of age. During trial he turned 26. His date of birth is June 12, 1992. Mr. Ladouceur is a welder by trade and graduated from high school. At the time of the events in question, Mr. Ladouceur was out of work and looking for a job. His parents were separated. He grew up in the Amherstburg area where his father still lived at the time of these events. Mr. Ladouceur completed high school in Windsor and then moved to Belle River where his mother and her partner lived at the time of these events.

[15] Physically, Mr. Ladouceur testified he is a little shorter than 5’10” tall and at the time of these events weighed no more than 150 pounds. Mr. Ladouceur admitted he was bigger and stronger than E.

3. relationship

[16] There is about one year difference in age between the accused and the complainant. They met at a fair when E was 18 and in high school. They had a boyfriend/girlfriend relationship twice. The first began shortly after they met and lasted one and a half years to two years. The second time commenced in March of 2016. At that time, Mr. Ladouceur had an apartment in Belle River. Although E continued to have a bedroom and clothing at her parents’ house, E lived with Mr. Ladouceur in his apartment at least a significant amount of time since the recommencement of their relationship. It was his apartment and he paid the rent but she kept personal items there and had a spare key. E had a car; the accused did not. E testified she really did love the accused. H, the complainant’s twin sister, did not approve of the relationship.

B. Friday night, May 20, 2016 – Mr. Biggs

[17] On Friday night, the two went to a local bar in Belle River called Mr. Biggs where they played pool. An issue arose because Mr. Ladouceur believed E was flirting with an “older” man while playing pool. When the pool game was over, Mr. Ladouceur advised the complainant that they were leaving. There was no argument in the bar but an argument began as the two walked home. The argument was over the claimed flirting in the bar. The argument continued in the apartment. At some point, E wanted to leave Mr. Ladouceur’s apartment and drive to her parents’ house. Mr. Ladouceur would not let her go. He grabbed and pulled E’s arm. E ended up staying the night at the accused’s apartment.

contested

[18] The accused and the complainant disagree over the reason for the forcible touching as well as its nature and extent. With regard to the argument, E said she was not flirting, but she did look at the man because she thought she recognized him from a trip she made with her father. Although Mr. Ladouceur admitted he is a jealous person, he denied he got jealous then and said he did not get angry but rather was uncomfortable with the situation. He said he was curious why E kept looking at the man. E denied any flirting but, according to the accused, he clearly saw it.

[19] E testified that Mr. Ladouceur was angry and yelling at her, calling her names. This went on for hours. E said she was crying and asking the accused to stop. She had to work the next morning. According to her, Mr. Ladouceur just would not let it go. He would not stop. E wanted to leave to drive to her parents’ house but Mr. Ladouceur would not let her go. He grabbed and pulled her arm while holding the door shut. He would not let her go.

[20] Mr. Ladouceur admitted pulling her arm but says it was only to prevent E from driving home after drinking a pitcher of beer. He states he was protecting her from drinking and driving. Mr. Ladouceur said they had two pitchers of beer and one bottle of beer, although he denied the drinking impacted his response to the events of the night. They were at the bar an hour and a half to two hours. According to E, she had about three beers and did not feel intoxicated. Nor, according to her, did the accused appear to be under the influence.

[21] Photographs were introduced, especially photographs 12 and 15 of Exhibit 1, showing areas of parallel bruise marks on E’s upper arm which are spaced similar to the spacing between a person’s fingers. According to E, this bruising was from the accused pulling her on Friday night with his hand.

C. Saturday, May 21, 2016

1. trip to Amherstburg

[22] E had to work on Saturday at the spa from 10:00 a.m. to 5:00 p.m. The accused drove E to work in E’s car and picked her up after work. The two had planned to spend Saturday night at E’s parents’ house; her parents were away camping. When Mr. Ladouceur picked E up, he told her that he first wanted to go see his father who lived in Amherstburg. E agreed and they drove to Amherstburg with the accused driving.

2. the Rob argument

[23] E had an ex-boyfriend named Rob. He was 27 years older than E and had a daughter about the same age as E. Mr. Ladouceur strongly disapproved of this relationship and told E about his negative feelings more than once. He thought such a relationship was not right. Mr. Ladouceur said that Rob did upset him because he believed E was still speaking with him.

[24] During the drive to Amherstburg, the accused looked over at E and saw the letter “R” on her cell phone. He immediately thought it was Rob and attempted to read the text. Mr. Ladouceur admitted he started the “conversation” about Rob and that he asked in a rude manner, “why are you messaging that fucking goof?” E denied it was Rob. An argument ensued while driving.

3. the assault causing bodily harm

[25] During this Rob argument, the accused got very mad and would not let it go. Mr. Ladouceur started hitting E while driving with his closed fist to her left arm and left leg. The blows were repeated and very hard. Mr. Ladouceur admitted the attack was at least partially out of jealousy, but denied losing control. He testified he was mad and in a very angry state. This assault took place while the accused was driving on a main street of Amherstburg while it was light outside and without consideration that others could see it. He was driving while striking. E was hurt and crying.

[26] E denied ever slapping or striking the accused.

[27] These blows caused large and significant bruises to the left upper arm and left upper leg of E. Police photographs taken the next day are in evidence as Exhibit 1. Specifically, photographs 3 through 11 of the upper arm and 38 of the upper leg graphically display these bruises. Mr. Ladouceur testified he was shocked when he saw the bruises later that evening and described them as “bad.” When first shown the arm bruise a few hours later, E’s sister H gasped in reaction.

contested

[28] In addition to the number of blows, the accused and the complainant disagree over what triggered the assault. E denied communicating with Rob. She testified that Mr. Ladouceur did not believe her and was insistent on knowing where Rob lived in Amherstburg. E would not tell him. The accused would not stop which led to the hitting. According to the complainant, Mr. Ladouceur hit her about twenty times while screaming at her to tell him where Rob lived. She refused. She screamed and cried when hit and called the accused names.

[29] Mr. Ladouceur denied he wanted to know where Rob lived. He testified that when he confronted E with texting Rob, she reacted by slapping him on the right cheek. Mr. Ladouceur took this as an admission that she was in fact texting Rob and he became “pretty angry” and maybe jealous. As an immediate reaction, he struck her hard on her left arm with his closed fist two or more times. According to Mr. Ladouceur, this started a fight. E turned her back to the door and kicked him in the ribs. The accused responded by punching her on her upper left leg three or four times pretty hard. He was upset and mad. E was hurt and crying. Mr. Ladouceur testified he was not suggesting self defence; he was mad. He simply explained why he struck her.

[30] At the time the complainant occupied the front passenger seat of the vehicle. The two most significant bruises shown in the photograph evidence were to the left upper arm and the left upper leg. Both of those locations would be facing the driver’s seat in the car.

4. the arena

[31] Following the hitting, they drove to a convenience store where the accused bought a pack of cigarettes while the complainant stayed in the car. She did not run or cry for help. From there, Mr. Ladouceur drove to the parking lot of an Amherstburg arena. There was no further hitting. The accused had a cigarette. It was still light out but getting dark. There were people around.

contested

[32] The complainant testified that the accused continued to yell at her and she was crying. But there was no more hitting. He wanted to have sex at the arena. He told her to take her pants off. He said, “Let’s go, let’s go.” He grabbed her pants and pulled them. She told him no. People walked by. When she looked at a walking couple, he asked her what she was going to do, tell them? Mr. Ladouceur was angry and left. They were only there for a few minutes.

[33] Mr. Ladouceur testified he did not ask for sex at the arena nor did he try to take her pants off. He tried to call his father multiple times but there was no answer. They were there for a good amount of time, 15 to 20 minutes.

5. father’s house

[34] The home of Mr. Ladouceur’s father was a few blocks away from the arena or about a two minute drive. His father was not home. The stop was brief.

contested

[35] According to the evidence of the complainant, Mr. Ladouceur got out and told her to get out and stay on the lawn. She did so. He had her car keys. When no one answered the door, they got back in the car and left.

[36] According to the evidence of the accused, he went to his father’s house despite no answer to his telephone calls because he thought his father would be outside working. When no one answered the front door, both he and E went to the backyard where they had a brief conversation with his father’s girlfriend.

6. to Hickory Acres

[37] Mr. Ladouceur drove to a secluded, rural road and parked. It was still light outside. This location was close to E’s parents’ home on a road called Hickory Acres.

contested

[38] E testified that they went toward her family home where they were planning to spend the night. It was about a 12 to 15 minute drive. En route, Mr. Ladouceur was yelling and E was crying then silent. There was no hitting. Before getting to her family home, Mr. Ladouceur turned off onto a winding road called Hickory Acres. He pulled off the road and stopped.

[39] Mr. Ladouceur testified they first went to the parents’ home. According to him, when they turned down the long driveway they saw her sister’s car and were surprised because they thought no one would be home. They were holding hands. E then suggested they go park somewhere and began rubbing his penis with her hand. According to Mr. Ladouceur, he then knew she wanted sex and he “could understand that she might be uncomfortable doing that [sex] maybe while her sister was there.” The accused put the car in reverse and drove back out of the driveway. He did not know where to go and turned into some road, the first place he saw. It was beginning to get dark.

[40] According to H, E’s twin sister, she was in their parents’ home when she saw E’s car pull into the driveway. She went from her bedroom, off of the garage, to the kitchen of the main house to greet them. She waited for their arrival and thought it odd that they came in through the back door rather than through the front door. She unlocked the back door for them and they came in.

7. the sex acts in the parked car

[41] The complainant and the accused had oral and vaginal sex in the front seat of the parked car on Hickory Acres. E briefly performed oral sex on Mr. Ladouceur while both were seated in their respective front seats in the car. Then E left the front passenger seat, climbed over onto the driver’s seat where Mr. Ladouceur was, turned around, and had vaginal sex with him. The accused ejaculated in her vagina and she returned to the passenger seat. They got dressed and went to her parents’ home.

8. what triggered the sex? - contested

[42] According to Mr. Ladouceur, after E’s parking suggestion and penis rubbing, he turned off onto Hickory Acres and parked. E still was touching his penis through his pants. When he put the car in park, she was taking down her pants. He asked her if they were going to do it there and she said yes. So he undid his pants and pulled them down.

[43] The complainant denied the sex was her idea or that she wanted it. According to her, Mr. Ladouceur stopped the car, pulled his pants down exposing his erect penis and kept telling E, “come on, let’s go, let’s go.” E was upset, crying and not saying much. She pulled her pants and underwear down around her knees. The accused did not participate in this removal. E leaned over the console and briefly performed oral sex on Mr. Ladouceur. She then climbed over to the driver’s seat, turned around and had vaginal sex with him. She has no memory of Mr. Ladouceur saying anything.

9. E’s subjective state of mind

[44] A full recitation of the complainant’s evidence pertinent to this issue is necessary.

[45] During examination in chief, the complainant testified:

Q: And when [the car] stopped what happened?

A: He just kept saying well come on let’s go let’s go.

Q: And were you saying anything in response to him?

A: I don’t remember saying much. I was really upset.

Q: So when you say you were upset were you doing anything such that other people could see you were upset?

A: No.

Q: Then how was anyone to know you were upset?

A: They didn’t.

Q: And when we speak of they we’re talking about Mr. Ladouceur?

A: He knew I was upset.

Q: Why do you say that?

A: Because he did. Because I was crying …

Q: So you were crying?

A: Yeah.

Q: That’s what I meant when I asked you did you do things that other people could see you were upset.

A: Yeah I was really, I was really upset. I was, I felt very not myself.

[46] Later in examination in chief, the complainant testified:

Q: All right and what happens next?

A: I was really, I had a lot of emotion and I was just really upset about what happened Friday and I just thought like I felt like really dirty that it happened that way that I just didn’t want to feel like like it was bad that it was going to happen this time so I just tried to make the best of it.

Q: Which means what? What did you do?

A: I think when I saw that he was hard it made me really upset because I didn’t, so I think I gave him orals to make, maybe to make myself feel like it wasn’t because of like, to make it seem that it wasn’t because of all the bad stuff that happened.

Q: And when you were talking about all the bad stuff what are you talking about?

A: Him hitting me and getting angry. … I don’t know.

Q: When you performed oral sex on Mr. Ladouceur and did he request that or did you do that on your own?

A: I can’t remember. I remember doing that. I don’t, I remember why I did it I don’t remember, I don’t remember.

Q: You don’t remember what?

A: A hundred percent if he said to do that. All I remember is that it was just, it was gonna happen and so I was just trying to make the best of it.

Q: All right. Did you do anything of a sexual nature with Mr. Ladouceur after the oral sex?

A: Yeah I just I turned around and just let him.

Q: Please use your words ma’am.

A: I just let him have sex with me.

Q: What type of sex are you talking about?

A: Him behind me.

Q: What … orifice are we talking about? Do you know what an orifice is?

A: No.

Q: What type of sex did you have?

A: Vaginal.

Q: Thank you. So let’s just break this down a bit okay? The car in question during all of these different acts did Mr. Ladouceur stay in the driver’s seat?

A: Yes.

Q: Okay when you were performing oral sex on him how did that happen? How did you get close enough to his penis to perform oral sex?

A: I just did it. I just leaned over and did it.

Q: So you leaned over from where you were which was the passenger seat?

A: Yup.

Q: Is there any type of console in that vehicle that you had to get over?

A: Yeah.

Q: And the vaginal sex how is it, we need to be able, even though you may think this is weird, I need to and the judge needs to and the defence counsel needs to understand how the vaginal sex occurred. So you have to tell us how that happened with as much detail as possible.

A: I wanted to make the best of it. I felt like that’s what I needed to do and I got over there and I just let it happen.

Q: So you say you got over there. Does that mean …

A: I climbed over and I just turned around.

[47] Still later in examination in chief, the complainant gave these answers to these questions:

Q: With regard to what had happened earlier that day in the car on that windy road, as far as the sex is concerned, did you consent to that sex?

A: I felt like I had to do what I had to do.

Q: I understand that, but did you ever give any indication to Mr. Ladouceur that you were consenting?

A: No.

Q: And did Mr. Ladouceur ever ask you [sic] permission to have sex with him in the front seat of that car?

A: No.

[48] On cross examination, the complainant provided this evidence:

Q: And when he got there you … say that he pulled his pants down?

A: Correct.

Q: And you could see his penis was erect?

A: Correct.

Q: He hadn’t done that in Amherstburg, though?

A: Done what?

Q: He hadn’t done that in the parking lot in Amherstburg?

A: No, he tried to pull mine off.

Q: Okay. You … were asked – we’ll come back to that in a moment. You … say that he did that, and you were then sitting next to him in the front seat of the vehicle, correct?

A: Correct.

Q: In … in Hickory Acres?

A: Correct.

Q: And you were fully clothed?

A: Correct.

Q: And so he said, “Let’s go, let’s go”?

A: Yeah.

Q: And then you removed your pants?

A: Yes.

Q: And Mr. Manarin asked you initially why you did it, and you said, “I just tried to make the best of it.”

A: Correct.

Q: And so you, you pulled down your pants because you were just trying to make the best of it? Is that what you meant by that?

A: Correct.

Q: And at least here, in the car at Hickory Acres, you were the one that pulled down your pants by yourself, you had no assistance in doing that, correct, at Hickory Acres?

A: Physically I had no assistance with that, correct.

Q: Unlike Amherstburg, where he tried to take your pants down?

A: Correct.

Q: So, you did that, and then you got them down … to your knees, is that correct?

A: Correct.

Q: And then you … performed oral sex on him?

A: For a few seconds.

Q: For a few seconds.

A: Yeah.

Q: So you would then have had to have reached or leaned over the console …

A: Yeah.

Q: … and … done that yourself?

A: Yeah.

Q: And you did that entirely on your own?

A: I didn’t want to think of it, that he was hard already, or that he had an erection already …

Q: Okay.

A: … ‘cause that was …

Q: Okay, what I’m getting at is you were sitting in the front seat of the car with him?

A: Correct.

Q: At that point in time, were your pants down or did you take your pants down after you … performed oral sex on him?

A: It was after.

Q: So you … pulled your pants down to your knees, correct? And then you must have bent over the console and performed …

A: No. First I did that, then I took off my pants.

Q: Oh, I’m sorry.

A: It was after.

Q: I … apologize. … I had it backwards. So, his pants are down, so he’s saying, “Let’s go, let’s go,” correct?

A: Correct.

Q: But you don’t take your pants down right away, you reach – you lean over the console …

A: Correct.

Q: … and briefly perform oral sex on him?

A: Correct.

Q: And you did that physically …

A: Yeah.

Q: … yourself?

A: Correct.

Q: No one touched you to do that, you leaned over there on your own to do it, correct?

A: Correct.

Q: No one had asked you to do that? You weren’t asked by him to perform oral sex on him, were you, at that time?

A: I don’t remember. I remember, I remember doing that to make it not feel so – I don’t know.

Q: Okay, well I just, I just want to understand – what I’m getting at is I’m asking you did anyone ask you to do that or do you have a memory of anyone asking – him asking?

A: I don’t remember.

Q: Okay, so that may very well have been something you just decided to do …

A: No, I didn’t want to do those things.

Q: I’m not saying that.

A: Yeah, you are.

Q: You say you … did this without any request, that you recall, am I correct?

A: That I recall.

Q: Yes. And no physical force was involved, correct, from him, on you?

A: Not physically, but mentally, yes.

Q. Okay. And so you simply moved your head over to I assume his, his, his lower abdomen and, and performed oral sex on him for a period....

A. For a second or two.

Q. For, for a brief period of time, correct?

A. Very brief.

Q. So you did that for a few seconds, is that fair?

A. Correct.

Q. And then you stopped, is that correct?

A. Correct.

Q. And then you … I assume, sat back up in the seat from bending over on his side, you sat back in your seat?

A. No, I sat on him.

Q. Oh, well, you....

A. I felt like when I did that, when I did that to him, I felt that it wasn't as bad. I knew it was going to happen eventually anyways, so...

Q. Okay.

A. ...I just wanted to believe that it was okay.

Q. Okay, yeah. What I meant was, you still had your pants on, as I understand your evidence?

A. I think I, I – I don't remember exactly when my pants - when I took my pants off. I don't remember exactly.

Q. Okay. So they may or may not have been up, let's put it that way.

A. I just remember I did take them off myself, and I remember I sat on him.

Q. Okay. This was after you performed oral sex on him?

A. Yeah, I remember that I just, I just didn't want to feel like, like he was - that he had an erection because of everything else.

Q. Okay, so you then climbed – or not climbed, you went over the console and sat on his penis, am I right? Inserted into your vagina?

A. But then I remember I turned around 'cause I just felt like crap.

Q. Okay, but, I appreciate that, but you, you, you climbed over the console and sat on his penis, and inserted it, it into your vagina. Is that correct?

A. Correct.

Q. And did you actually insert his penis in your vagina or it just ended up there?

A. I don't remember exactly, if we both – I don't, I don't remember that.

Q. Okay.

A. I, I, I don't remember exactly.

Q. And it ended up, it ended up in your vagina, in any event?

A. It happened, yeah.

Q. And this is on his side of the car?

A. Yeah.

Q. And you, again, had … not been physically dragged or pulled or tugged over there, you were simply....

A. Not at that time.

Q. You did that yourself?

A. I wasn't mentally in the right state of mind. I did not want to do that.

Q. Okay. But I'm not asking – I'm saying physically you were - you did that physically on your own, physically?

A. Correct.

Q. Okay, and that went on for some brief of time and then somehow you ended up facing the back window?

A. Yes, I – it wasn't right.

Q. But, but, again, you … must have....

A. I just got off and I turned around.

Q. Okay, you did that on your – you physically did that yourself?

A. Yeah, I did that on my own.

Q. Okay, that's all I'm trying to find out. Now, and then the sexual intercourse went on for a period of time, and then it stopped, is that correct?

A. Correct.

Q. And then, I, I assume, or you then got off of – moved from that position back, pulled your pants up, and returned to the sitting position in the front seat of the, of the vehicle in the passenger seat, am I correct?

A. He said, "Thanks".

Q. Pardon me?

A. He said, "Thanks."

Q. He said, "Thanks," but I'm saying physically you climbed back into....

Q. Yeah, I got back into the other seat.

A. Pulled up your pants, correct? And then, if he - I assume he got - he put his clothing back on, correct?

A. Correct.

Q. And then he drove to your parents' home?

A. Correct.

Q. And so, so that's the physical activity that took place, am I correct, at, at that point in time in, in this Hickory Acres drive?

A. Correct.

Q. Okay. So going back to, then, the other aspect of it, so, really, your answer for why you did this was initially, "I just wanted to make the best of it"?

A. No, I felt defeated.

Q. I'm not asking....

A. That's why I did it. I wanted, I wanted it to not feel so awful. I wanted the whole day to not feel so awful.

Q. All right. But I'm just – I'm not - I'm asking you the language you used, when Mr. Manarin asked you that question...

A. What I meant by that...

Q. Yeah, exactly.

A. ...was that I didn't want to feel so awful about everything that day.

Q. You wanted to fix it?

A. I just wanted to feel something.

Q. You wanted to feel something between the two of you?

A. I don't know. I don't know. I just felt awful. I can't really explain it.

Q. So if I were to suggest to you, you were hoping....

A. No. I wanted to die that day.

Q. Okay.

A. I wasn't hoping anything. I felt defeated.

Q. You felt defeated, I appreciate that's what you've told us, but there must have been some motivation in you that you wanted to make the best of it, I'm suggesting to you that what you were really trying to do was, was make it all go away, make that bad experience that day, just go away? Put it behind you, or....

A. I was - I don't know. I was trying to feel.

A. I felt really awful, and I didn't know, didn't know how to handle everything. I didn't know what to do.

Q. You didn't what, you didn't know what to do?

A. Right.

Q. But just go up to the point where you started performing oral sex, that brief....

A. That, I thought, I … didn't want to feel awful about everything. And I thought that if, like, after he said, "Thanks", I realized that it didn't do anything.

Q. Okay. Now, let's....

A. I just felt awful that day.

Q. Okay, after he said, "Thanks"....

A. He said, "Thanks".

Q. After – that's what I said, after he said, "Thanks", you concluded - what I … understand you're saying, is when he said that, you then concluded that this, this sex hadn't fixed anything? He was the same person he was before?

A. When he said that I realized that he did not have any remorse at all.

Q. Or feelings at all?

A. At all.

Q. So were you looking for an apology at that point?

A. I don't know.

Q. So, I mean, in, in fairness, I can certainly appreciate why you might've been in some state of emotional confusion at that point; before, while you're in the front seat in, in the Hickory Acres Drive.

A. I was still emotionally confused from Friday.

Q. And, and although, as again you've told us, you still had feelings for Mr. Ladouceur at that point?

A. I didn't know how I was feeling. I was really confused in my own head.

Q. Yeah, I'm not suggesting you sat there and sort of thought it through. But certainly you were confused about your relationship with him and your feelings toward him?

A. Yeah.

Q. Is that fair?

A. I was confused about everything, I was upset about everything.

Q. And when you - this is when you performed oral sex on him, you were motivated by a desire to fix the relationship, isn't that what you, what you were trying to do?

A. I was always trying to fix him.

Q. I certainly appreciate that, and, and - but I am just going to focus on this one brief period of time. You were trying to fix the relationship with Mr. Ladouceur when you did that to him, in your own way?

A. I was trying to feel something.

Q. Pardon me?

A. I didn't know. I was just trying to feel something.

Q. Something for him?

A. No, just something in general. I didn't know how to feel. I didn't know. I was really numb.

Q. Confused?

A. Pardon me?

Q. Confused?

A. Yeah, I was just – it was everything.

Q. So you really can't – I gather, really, it's difficult to articulate your thinking at that moment, obviously, you're having difficulty doing that, is that fair?

A. Going through that, yeah, it was really hard for me to articulate a lot of my emotions.

Q. And it's hard to get through that today?

A. No.

Q. Okay.

A. I know what happened was wrong.

Q. I appreciate that.

A. And I know what he did was wrong.

Q. I appreciate that, but what I'm getting at is at the moment it was happening, you can't explain why you were doing it?

[49] Then later of cross examination during an impeachment effort with regard to her preliminary hearing evidence that, to her, “let’s go, let’s go” meant he wanted to have sex, there was the following exchange:

Q: Okay. But you did tell the court at that time that he told you to take off your pants, is that correct?

A: Right.

Q: Now, and you did, at least down to your knees, correct?

A: Yeah, I thought because it, it didn’t happen, that it was going to happen and …

Q: Mm-hmm.

A: I knew it was eventually going to happen, and I just felt defeated.

[50] During her evidence, the complainant explained the nature of their relationship when Mr. Ladouceur wanted something. With regard to her car, she did not allow Mr. Ladouceur to drive her car but he drove it all the time. When asked how that was, E said, “He just would” and explained that, “He just always wanted to drive and it would always be a fight.” During cross examination, the same issue arose:

Q. You made a decision to let him use your car?

A. No, I didn't want him to use my car. But I didn't want him to put me down and be rude to me, so I just let him use my car.

Q. That's what I'm getting at. You let him use your car, am I right?

A. I just felt defeated.

Q. But the point I'm making is this: You may not really have wished that he used your car, am I right?

A. I just didn't want to feel like crap anymore.

Q. Okay, well, I'm trying to – I'm just using the car as an example.

A. I knew that he wouldn't, he wouldn't let it go until I let him use my car.

Q. Or till you left? You left the relationship, taking your car with you, correct?

A. He wouldn't have let it go.

[51] Then, also during cross examination, when asked about not locking the bathroom door later when she took a shower, the complainant gave these answers:

Q. And I assume the bathroom has – the bathroom door has a lock on it?

A. Correct.

Q. And you were in there first?

A. Correct, I didn't lock the door, no.

Q. You didn't … close the door, well you didn't close the door on him, or lock him....

A. No, I just – I don't even think I fully closed it. I just wanted to get into the shower.

Q. Well, what I'm getting at is he's behind you some distance, correct?

A. He was right behind me, coming upstairs.

Q. Well, did you try to close the door so he couldn't get into the bathroom when you were taking your clothing off to have a shower?

A. No, I was just – I felt defeated.

Q. You felt defeated?

A. Yeah.

Q. And, I take – when did this feeling, defeat, start to arise within you during the course of this evening?

A. It wasn't – I felt that two months in.

Q. You felt that?

A. Defeated.

Q. You felt that in before this night?

A. Yeah.

Q. And you say defeated, you mean that you just basically lost control of your life?

A. Yeah.

[52] Still later during cross examination, E testified as follows:

Q. So you didn't know what you felt?

A. I felt awful.

Q. You felt awful. And because you felt awful you didn't do anything about excluding Mr. Ladouceur from the bathroom when you had the shower?

A. I didn't want to bring my sister into it.

Q. Well, of course not. It's your sister. But, what I'm saying is, you, you didn't want to bring your sister in because you felt awful, you just felt bad at that point in time, is that correct?

A. Really bad.

Q. Really bad. And because you felt bad, you felt bad, you simply allowed Mr. Ladouceur to get in the shower with you, correct?

A. I felt that bad.

Q. Yeah. You chose not to stop him from getting in the shower, because you felt bad about yourself, I suppose, and about the whole situation, is that fair?

A. Correct. I was scared.

Q. Scared? Scared of what?

A. Everything.

Q. But by this point in time, he'd calmed down. According to you, he calmed down.

A. At that time.

[53] When explaining to defence counsel why she did not remove her hand from Mr. Ladouceur during the drive to Belle River, the complainant testified as follows:

Q. And in the meantime, you and, and your sister – well, you're in the backseat with Mr. Ladouceur holding his hand, am I right?

A. He was holding mine.

Q. He was holding your hand, but you were not removing his hand from your hand, correct?

A. I was just sitting there.

Q. Well, he … had your hand, holding your hand, affectionately like, people hold hands?

A. No.

Q. No? What was he doing?

A. Control.

Q. Control? But, but, but – he's holding your hand, correct?

A. Yes.

Q. You're not removing your hand from his hand, correct?

A. Correct.

Q. So you chose to let him hold your hand while you're in the car, driving to Belle River from, from your home, correct?

A. I felt defeated, yes.

Q. You, you felt defeated, but you chose to continue to allow him to hold your hand, am I right?

A. Correct.

[54] The complainant testified she had been emotionally dealing with Mr. Ladouceur since she was eighteen years old. In response to her willingness to do things because she was in love, the complainant responded as follows:

Q. And you're willing to agree to do things because you're in love with him, correct?

A. I was manipulated into thinking I had to do what I had to do.

Q. Well, you – and you allow, you allowed yourself to be manipulated because you're emotionally - very emotional condition, correct?

A. Not all the time, but a lot of the times...

Q. A lot of it.

A. ...I felt like that, yeah.

10. at E’s parents’ house

[55] There was no discussion on way to her parents’ home. The home sits about 100 feet down the driveway which ends at the front of the house. The sister’s car was there; she was not expected. They tried the front door first and could not gain entry so the complainant and Mr. Ladouceur went around to the back door where they entered. The back door enters the kitchen where H, E’s sister, was at the kitchen counter. E entered first with Mr. Ladouceur a few steps behind. H asked what was going on or what was wrong. E did not respond to her sister and looked downward. Mr. Ladouceur responded “nothing.” She walked through the kitchen heading toward the upstairs shower. Mr. Ladouceur followed right behind her.

contested

[56] According to H, when the two came in, she noticed that something was wrong. E would not look H in the eyes and looked to the side. E did not respond when asked what was wrong but Mr. Ladouceur did, telling her “nothing” and to stay out of it.

[57] According to Mr. Ladouceur, both he and E did not look normal because they just had sex in a warm car. They both were sweaty and E’s hair was messy. Mr. Ladouceur testified that E also said “nothing” in response to the sister’s questions.

11. shower

[58] They went upstairs to shower. When E took off her sweater and saw her arm it looked worse than she thought it would. When Mr. Ladouceur saw her arm he was shocked; he did not think he hit her that hard. He testified he felt terrible. According to Mr. Ladouceur, he apologized multiple times. E said her arm really hurt. According to the complainant, Mr. Ladouceur said she would have to wear sweaters for a few weeks. They showered together for about 10 minutes. She got out first, got clothes from the laundry room and put them on. According to Mr. Ladouceur, the complainant was upset and had tears in her eyes when she left the shower.

12. the gasp

[59] When the complainant and Mr. Ladouceur went upstairs, her sister H did too. She felt she needed to go because she felt something was wrong. She waited in an upstairs bedroom and heard the shower. When E came out she came into the bedroom where H was and sat on a bench. E did not respond to H’s questions about what was wrong. E had tears in her eyes. Then Mr. Ladouceur came into the room. He said nothing was wrong and that he wanted to speak with E alone. H refused to leave. Mr. Ladouceur then tried to physically remove E from the room by trying to pick her up. E resisted and asked Mr. Ladouceur if he wanted her to show H her arm. E then exposed the large purple-black bruise on her left upper arm. H gasped when she saw the bruise and became very upset. Mr. Ladouceur testified he lied to H, saying E got the bruise in a bar fight. E denied any bar fight and Mr. Ladouceur challenged her denial as untrue. Mr. Ladouceur called E a liar. H got angry and told Mr. Ladouceur to leave the room. The accused argued with H but eventually left the room. The door was closed. Mr. Ladouceur was in the hall crying and upset. H exited and told Mr. Ladouceur he had to go home. The accused and H argued. Everyone went downstairs. E and Mr. Ladouceur went out to the back deck and smoked cigarettes. H watched from the kitchen. H continued telling Mr. Ladouceur he had to leave. He refused. They argued. Mr. Ladouceur was angry and insisted on staying. They argued more. H was insistive. H told him to take E’s car and go home. Finally, Mr. Ladouceur left in the complainant’s car.

13. Mr. Ladouceur leaves and returns

[60] The accused drove off in the complainant’s car. H locked all the doors but forgot to lock the door to the garage. H felt relieved. Then, minutes later, H heard the garage door open and Mr. Ladouceur entered the kitchen where H and E were. H challenged his return and insisted he leave. Mr. Ladouceur wanted to stay. The accused wanted to bring E with him but was told that would not happen. H said she would drive him home. Finally, Mr. Ladouceur agreed if the complainant went with them. The three got in the car to take Mr. Ladouceur back to his Belle River apartment. H drove with Mr. Ladouceur and E in the back seat.

contested

[61] According to Mr. Ladouceur he returned only because he did not want to run out of gas. He left his wallet in the bathroom. When he explained that to H, she did not believe him. Mr. Ladouceur retrieved his wallet from the bathroom and was informed he could not take the car. H and Mr. Ladouceur argued until finally she agreed to drive him home.

[62] According to both H and E, Mr. Ladouceur returned angry and aggressive saying he was staying. H testified that the accused was “in my face, yelling at me, trying to push me down.” When that was unsuccessful, Mr. Ladouceur wanted E to come with him. That too was unsuccessful and H told him she would drive him home. Mr. Ladouceur refused unless E came with them. Then he refused to get in the car unless E sat in the back with him. There was a continuing argument

14. trip to Belle River

[63] The trip to Belle River took approximately 20 minutes. Mr. Ladouceur was upset and crying during the ride. He repeatedly and aloud said he was going to kill himself using a shotgun from his mother’s garage. According to Mr. Ladouceur, his threats of self-harm seemed to upset E but did not seem to bother H. He held the complainant’s hand tightly, but claims he was not squeezing it to hurt her.

contested

[64] According to E, Mr. Ladouceur was squeezing her hand really hard and it hurt. H testified she heard E cry out saying, “ow, ouch, you’re hurting me.”

15. the parking lot

[65] Once they arrived in the parking lot of Mr. Ladouceur’s apartment, he refused to get out of the car. They got there about midnight. They argued variously about Mr. Ladouceur leaving, E coming up to get some of her things, and Mr. Ladouceur’s desire to talk with E alone. There was much yelling. Mr. Ladouceur admitted he was begging H to talk to E alone. H said “no” to all and insisted on his leaving. At one point, E told her sister to go, she would stay, because she was really upset and “didn’t want to keep fighting.” H refused. At another point H attempted to drag Mr. Ladouceur physically out of the car. H grabbed his shirt and in the effort she broke his necklace. Then, when they finally got Mr. Ladouceur out of the car and started to drive away, Mr. Ladouceur jumped into the moving car.

[66] Recognizing that it was not possible to escape without help, H drove to a Tim Hortons located across the street.

16. Tim Hortons

[67] On arrival, H went into the store and sought help. Both E and Mr. Ladouceur also entered the store. A Tim Hortons employee told Mr. Ladouceur he had to go outside. He did so, after an angry argument, but stayed by a window crying, making more suicide threats, and telling E he was sorry. The police were called.

[68] Ms. Joni Hillman, a 57 year old Tim Hortons employee, testified. She remembered the incident. According to her, the sisters were very upset and distraught. She said Mr. Ladouceur was crying and very insistent when she told he had to leave the store. He then went to a store window and was very persistent in trying to talk to one of the girls.

[69] The police responded to the Tim Hortons at 12:19 a.m. One officer spoke with E and another with Mr. Ladouceur outside. E just told the officer they were in a fight and she wanted to go home. She never said anything about the punches or the sex. Indeed, on cross-examination, E admitted she lied to the officer when she denied Mr. Ladouceur physically hurt her. Mr. Ladouceur testified that in response to the officer’s inquiry as to why he was upset and crying, he admitted omitting the punching, the physical acts.

[70] There was an issue about keys to the apartment. Mr. Ladouceur testified he had no keys to get into his apartment and wanted the spare key possessed by E. When the police arrived, he told them he needed the key from E. One of the officers, Jeremy Renaud, testified at trial. He recalls an issue about a missing apartment key. E remembers being asked about the key by the police. According to her, E gave the key to H to put outside the Tim Hortons for Mr. Ladouceur. Mr. Ladouceur said he never got the key. H testified she has no memory of the key.

[71] Mr. Ladouceur was directed by the police to go to his apartment which he did. The sisters drove home.

17. damage to car

[72] With regard to the complainant’s car, the driver’s side visor was removed from its position in front of the driver on the ceiling of the car. The visor’s mirror is broken. In addition, the location of the stereo in the dash of the car is empty; there is a hole where the stereo normally is located. Police photographs of the car and these items are in evidence as Ex. 1, photographs 52-63.

[73] According to the testimony of E, she discovered the damaged items the next morning when she made her police complaint. She testified that when the accused took her car they were present and fine but when he returned they were gone and the visor mirror was cracked. According to H, she noticed the visor and stereo missing when she got in the car to drive Mr. Ladouceur back to Belle River.

[74] Mr. Ladouceur admitted damaging the visor but denied taking the stereo or cracking the visor mirror. According to him, the visor would annoy him by flopping down when driving. The removal happened during the Rob argument earlier on Saturday, which is when he pulled the visor off after he assaulted E. Mr. Ladouceur denied damaging the radio/stereo stating that it was always damaged. Indeed, according to him, he had the unit at his house trying to fix it. With regard to the cracked mirror, Mr. Ladouceur did not address it.

18. the complaint and arrest

[75] The next morning, Sunday, the complainant went to the police station and complained about the conduct which forms the basis of the indictment. Later that day, Mr. Ladouceur was arrested at his mother’s home in Belle River. The police confirmed that there was a shotgun located in the garage of his mother’s home.

LEGAL PRINCIPLES

presumption of innocence and reasonable doubt

[76] At his arraignment, Mr. Ladouceur entered his plea of not guilty to the charges of sexual assault and mischief. So we have a formal accusation and a denial, a not guilty plea. A trial thus is necessary to determine the matter. But it is not a trial without principles. Mr. Ladouceur is presumed to be innocent of the charge. This presumption is a cornerstone of our criminal justice system. This presumption of innocence stays with Mr. Ladouceur throughout his trial and can only be defeated if and when Crown counsel satisfies me by the heaviest burden known in law, beyond a reasonable doubt, as to each and every essential element, that Mr. Ladouceur is guilty of these charges.

[77] This heavy burden of proof never shifts, it is always on the Crown. They are the ones who brought the charges against this individual; they must prove the allegations. Mr. Ladouceur does not have to prove anything; he does not have to present evidence; he does not have to testify himself. It is the Crown who must prove every essential element beyond a reasonable doubt before I can find Mr. Ladouceur guilty.

[78] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[79] It is not enough for me to believe that Mr. Ladouceur is probably or likely guilty. In those circumstances, I must find Mr. Ladouceur not guilty, because Crown counsel would have failed to satisfy me of Mr. Ladouceur’s guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[80] However, I must also remember that it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, having said that, proof beyond a reasonable doubt is closer to proof to an absolute certainty than it is to proof on a balance of probabilities.

[81] Often in sexual assault prosecutions, the case turns on the evidence of the two principals – the man and the woman. A determination of guilt or innocence, however, must never devolve into a mere credibility contest between the two main witnesses. Such an approach erodes the operation of the presumption of innocence and the assignment of the burden of proof beyond a reasonable doubt to the prosecution. Indeed, when an accused elects to testify in his own behalf, as Mr. Ladouceur did in his trial, I must assess the evidence as follows:

(1) if I believe the evidence of Mr. Ladouceur that he did not commit the crimes charged, I must acquit him;

(2) even if I do not believe the evidence of Mr. Ladouceur, but I am left in a reasonable doubt by his evidence as to any essential element, I must acquit him;

(9) even if I do not believe and am not left in a reasonable doubt by the evidence of Mr. Ladouceur, then I must consider whether, on the basis of all the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Ladouceur. Only then can I convict. It is a very high burden indeed.

credibility and reliability

[82] The two concepts are not identical. Credibility refers to the honesty of the witness. Reliability refers to the accuracy of the witness’s evidence. A witness may be honest but wrong. Both concepts must be considered by me.

[83] Where there are significant inconsistencies or contradictions within a complainant’s testimony, or when considered against conflicting evidence in the case, I must carefully assess the evidence before concluding that guilt has been established.

[84] Demeanour evidence alone cannot suffice to make a finding of guilt.

[85] To the extent that a credibility or reliability assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect – the evidence should, however, be capable of restoring the trier’s faith in the complainant’s account. However, it must be remembered that corroboration is legally not required in sexual assault cases: see s. 274, Criminal Code.

prior inconsistent statements

[86] When a witness says one thing in the witness box, but has said something quite different about the same event on an earlier occasion, common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’ testimony.

[87] If I find, after having heard all the evidence, that any witness gave an earlier and different version about the same events, I will consider the fact, nature, and extent of any differences between the versions in deciding whether or how much I will believe of or rely upon that witness’ testimony in deciding this case. I bear in mind that not every difference or omission will be significant. I also will take into account any explanation the witness gives for any differences or omissions.

[88] It is important to remember that a witness’ prior inconsistent statement cannot be used as proof of the truth of the contents of the statement. That is hearsay and inadmissible. R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C.(3d) 257, at 266. It can only be used in the assessment of the believability of the witness.

complainant’s post-event conduct

[89] At issue is the failure of the complainant to raise alarm or to attempt escape as counting against the veracity of her account. The significance or evidentiary relevance, if any, of the complainant’s failure is contextual. It will vary from case to case depending upon the trier of fact’s assessment of the evidence relevant to the complainant’s post-event conduct.

[90] Indeed, it will be so assessed.

[91] In 2000, in a child sex case with one type of post-event conduct, delayed complaint, the Supreme Court of Canada in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, rejected the necessity of expert evidence on the issue of delayed disclosure stating the following at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[92] Thus, as I am assessing the credibility of the complainant and the issues of her conduct post-event, I will assess all the evidence globally in light of DD.

[93] With regard to the failure to escape or to cry out for help, I consider them as factors but, in my opinion, they have very little value here. First, there are simply too many variables on how people respond to assaults, including sexual assaults, to be able to draw any comfortable conclusions from the response of E. Second, and perhaps most importantly, the accused admits both the assault and the assault causing bodily harm on E during that same period of time that she did not attempt to run or to call out for help. Third, E explained that she did not run from the car at the convenience store after the assault causing bodily harm because she had run before and the accused had caught her, a fact admitted by the defence. These, for me, negate any claimed significance for these failures in this case.

[94] Each count in a multiple count indictment is treated as a separate indictment: see s. 591(2), Criminal Code.

[95] Although neither of the very experienced counsel before me argued that I should assess credibility globally and not compartmentalized, or that I should restrict the assessment on a count by count basis limited to the evidence adduced as to each count, it is imperative to review the law in this area because of the general rule that evidence of crime A cannot usually be adduced as proof of crime B.

[96] This is a domestic case, a case involving a boyfriend and girlfriend over a weekend. The girlfriend describes violent acts she says her boyfriend committed upon her that weekend and describes a relationship marked by dominance and submission. The boyfriend says the assaults happened but that the sexual assault was consensual sex. The entire relationship is necessary to assess credibility of both parties to it. It would be artificial to treat each allegation as a watertight compartment. Their life together did not work that way. Reviewing the evidence in context is essential for my credibility assessment.

[97] In placing both the complainant’s evidence and the accused’s evidence in the context of the overall domestic relationship with each other, other discredible conduct of one partner evidencing his or her attitude and behaviour within the relationship may be admissible to establish the true and complete nature of the couple’s relationship: see R. v. F. (D.S.) (1999) 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.); see also R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, at pp. 357-58.

[98] I must, of course, balance the probative effect of the evidence against its potential prejudicial impact: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. I have reviewed the important probative value identified above. In order to properly assess the credibility of both parties in the relationship, I must have a global picture. Compartmentalization risks a skewed, incorrect picture. On the prejudice side, this is a judge alone case. I am aware of the potential of moral prejudice – conviction based on bad personhood, the potential for reasoning prejudice, and the danger of confusion from the multiplicity of incidents thus putting more weight than justified on the complainant’s testimony. I disavow and avoid both. I will not use this evidence to conclude the accused is a bad person more likely to commit the crimes charged.

[99] Although presumptively inadmissible, I am satisfied that on a balance of probabilities the probative value of this evidence in relation to the issues identified above outweighs its potential prejudice and thereby justifies its use as such.

collusion

[100] The sister gave evidence that she and the complainant spoke about this matter. The sister was not present during the crimes alleged but was present and gave evidence regarding what happened in the hours following the alleged incidents. Although the experienced counsel before me have not raised the issue of potential tainting by collusion, I think it prudent to review and apply the law in this area.

[101] In R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at paras. 81-82, the court of appeal outlined the law in this area:

Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B. (C.) (2003), 2003 32894 (ON CA), 167 O.A.C. 264, [2003] O.J. No. 11 (C.A.), at para. 40. As this court noted in R. v. F.(J.) (2003), 2003 52166 (ON CA), 177 C.C.C. (3d) 1, [2003] O.J. No. 3241 (C.A.), at para. 77, the “reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.”

[82] In R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, the Supreme Court addressed how to deal with the issue of possible collusion outside the context of similar fact evidence. The court stated, at para. 45:

On the assumption that the evidence is admissible, I am prepared to adopt the more conventional approach which would leave it to the trier of fact to determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose.

[102] After hearing the evidence of E and H, as more fully reviewed above and below, I find no deliberate collusion. I also saw no inadvertent tainting or colouring of the evidence of either E or H.

Browne v. Dunn

[103] The defence argued, with vigour, that the Crown’s failure to cross-examine the accused with regard to his evidence on what happened on Hickory Acres was functionally in contravention of the rule in Browne v. Dunn.

[104] This position is misplaced. The rule in Browne v. Dunn was summarized by the court of appeal in R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636, as follows:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness box.

[Emphasis added.]

[105] Here, there was no contradictory evidence called by the prosecution in reply. The contradictory evidence already was before the court and given in the presence of Mr. Ladouceur. There was no violation of Browne v. Dunn.

assessment of the evidence

[106] To make my decision on the issue of credibility overall, I must consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to me to decide how much or little I believe and rely upon the testimony of any witness. I may believe some, none, or all of it.

[107] I must and will use my common sense in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe a witness’ testimony or how much to rely on it in deciding this case.

[108] In making my decision, I do not consider only the testimony of the witnesses. I take into account, as well, any exhibits, and there are two that have been filed. I will decide how much or little I will rely on them, as well as the testimony, to help me decide this case.

sexual assault

[109] “Control over the sexual activity one engages in lies at the core of human dignity and autonomy.” R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 1.

[110] The essential elements of sexual assault are divided into the actus reus and mens rea of the offence. A person satisfies the actus reus if 1) he voluntarily touches another person, 2) the touching is of a sexual nature, and 3) there is no consent to the touching by the person touched. A person satisfies the mens rea if he knew the person touched was not consenting to the sexual act in question or was reckless or wilfully blind to the absence of consent. R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 23-24.

actus reus – no consent - subjective state of mind

[111] Consent must be freely and voluntarily given. The definition of consent for purposes of a s.271 sexual assault offence is found in s.273.1(1) which states, in pertinent part, “’consent’ means … the voluntary agreement of the complainant to engage in the sexual activity in question.”

[112] It is the absence of this consent which is an essential element of the crime of sexual assault.

[113] This absence of consent is subjective and determined by the complainant’s state of mind at the time of the touching: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 26. There is no requirement for the complainant to express, by words or actions, her lack of consent: J.A., at para. 41; R. v. M. (M.L.), 1994 77 (SCC), [1994] 2 S.C.R. 3, at p. 4. All of the circumstances must be considered. Moreover, implied consent is not recognized in Canadian law: Ewanchuk, at para. 31.

[114] To better understand the meaning of consent in this context, a quote from Ewanchuk, at para. 28, is helpful.

The rationale underlying the criminalization of assault explains [why the complainant’s state of mind is determinative on the consent element]. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the [Criminal] Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

[115] It must be understood, however, that a complainant’s participation in, or ostensible consent to, a sex act may not alone be determinative of this issue. The consent must be freely and voluntarily given.

[116] Parliament, in two sections, has enacted a list of circumstances in which there is no legal consent. Section 273.1 of the Criminal Code provides, in pertinent part

(2) No consent is obtained … where

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained.

[117] Section 265(3) also provides as follows:

[N]o consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

[118] These statutory lists of circumstances in which no consent is obtained are non-exhaustive: see J.A., at para.35.

[119] “To be legally effective, consent must be freely given.” Ewanchuk, at para. 36. To more fully understand the meaning of consent in this context, both the Supreme Court of Canada in Ewanchuk, at para. 37, and the Ontario Court of Appeal in R. v. Bell, 2007 ONCA 320, 223 O.A.C. 243, at para. 46 and R. v. S. (D.G.) (2004), 2004 7198 (ON CA), 72 O.R. (3d) 223, at para. 50, have quoted Fish J.A. (as he then was), in R. v. Saint-Laurent (1993), 1993 4380 (QC CA), 90 C.C.C. (3d) 291 (Que. C.A.), at p. 311:

As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has been exercised where a person engages in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation.

“Consent” is thus stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will. Putting the matter this way emphasize the difficulty of distinguishing, otherwise than by reference to vitiating factors, between “consent” and “non-consent” in relation to the offence of assault.

mens rea

[120] In addition to actual knowledge of non-consent, recklessness or wilful blindness also may satisfy the mens rea element of sexual assault. These are distinct inquiries. The Supreme Court identified the two concepts as follows:

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, at p. 584.

honest but mistaken belief in consent

[121] A mistake of fact is more accurately viewed as a negation of the mens rea requirement rather than a free-standing defence. If an accused commits the actus reus innocently, under a flawed perception of the facts, the person does not have the requisite mens rea: R. v. Pappajohn, 1980 13 (SCC), [1980] 2 S.C.R. 120, at p. 148 (Dickson J. dissenting in the result).

[122] When the mistaken belief is the complainant’s consent to a sexual act, Parliament provides some guidance.

[123] Section 265(4) of the Criminal Code provides:

Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

[124] Section 273.2 also provides:

It is not a defence to a charge under section 271 … that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from the accused’s

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[125] Once it is established on the evidence that there is an air of reality to this defence, there is no burden on the defence; the burden of proof remains with the Crown. The Crown must prove the accused did not have an honest belief beyond a reasonable doubt.

POSITIONS OF THE PARTIES

Defence

[126] The defence says the central issue is consent. The earlier violence was not linked to the sex. The complainant had a choice; it was her decision to have sex. She said no at the arena and the accused accepted that no. She never said she feared a beating. Indeed, the active participation of the complainant in the sex acts is strong evidence of its consensual nature. The evidence clearly establishes this was consensual “make up” sex.

Crown

[127] The prosecution says the accused is a manipulative liar. He lied to the court. Thus nothing he said should be believed. The complainant should be believed. Her evidence is corroborated by the guilty pleas of the accused and by the evidence of the Tim Hortons employee.

[128] Given the violence that transpired earlier, there was no voluntary consent to the sex. Submission, acceptance of the inevitable, is not legal consent. Moreover, the accused abused his position of trust as her boyfriend which negates any consent pursuant to s. 273.1(2)(c).

PRINCIPLES APPLIED

Credibility and Reliability

[129] Before turning to the substantive issues presented, I must first decide what evidence I accept.

Mr. Ladouceur

[130] Mr. Ladouceur testified before me over two days. I listened carefully to what he had to say and how he said it. I was not impressed. Mr. Ladouceur lied to me under oath on a material matter. Mr. Ladouceur admitted to lying to H after the shower when she gasped upon seeing the arm bruise. He told the H that E got that bruise from a bar fight. Mr. Ladouceur admitted this was a lie. Indeed, he plead guilty to an assault causing that bruise. But, on cross-examination, when asked about the origin of that lie, that false story, Mr. Ladouceur testified, under oath, that the complainant was the originator. The questioning continued. After much evasion, he said the false bar fight story was agreed upon by both him and the complainant. Mr. Ladouceur then resiled away from the complainant agreeing to the false story. Then, finally, Mr. Ladouceur agreed that he was the originator of the false story.

[131] I reproduce the pertinent portions of that cross-examination to show the nature of this false evidence as well as the evasion by Mr. Ladouceur.

Q: …. And did you [think of that false bar fight story] off the top of your head, right?

A: Now that I can think about it, when we were in the washroom before she even went into the bedroom, that’s what she told me she was going to tell her sister.

Q: Oh. You forgot to say that when Mr. Miller was asking you questions, eh?

A: Did I forget to say that?

Q: Yes, sir. You never testified to that when your own lawyer was asking you questions.

A: I believe, I don’t believe I was asked that question.

Q: Did you overlook that?

A: I didn’t think about it immediately, no.

Q: So let’s just be clear. You are now telling us in cross-examination that, while in the washroom, it was [E] that told you to lie. Is that correct?

A: I wouldn’t say she told me to. I’d say we probably agreed on it.

Q: Well, tell me more about this discussion.

A: Tell you more about this discussion – we were talking about the bruises she had and we both didn’t want anybody to see them really. And, oh, she just – sorry, not she, we agreed on a story as how maybe she would have got such bruises.

Q: So you’re saying that [E] was willing to go along with this falsehood if anybody would ask. That’s why you were having this discussion. Is that what you are telling us?

A: Before her sister seen, actually seen the bruises and I had told her sister that that’s how she got the bruise, I’m going to say [E] went along with it but she didn’t say that that’s how she got the bruises. She didn’t really, I’m going to say she went along with it but she didn’t go along …

Q: I don’t …

A: … with it.

Q: … understand what that means. Can you use your words?

A: She didn’t say anything, sir. She didn’t really say anything to her sister about the bruise right away.

Q: No.

A: She didn’t do anything.

Q: That’s not what I’m asking you about, sir. Let’s go through this …

A: Then I just …

Q: … one more time.

A: … don’t understand the question.

Q: I want to take you back to the washroom. You understand that asking you about a discussion that you had or that you and [E] had about the bruise – do you understand that’s what I’m asking you about?

A: Yes.

Q: All right. Was there a discussion between you and [E] in the washroom as to what would be said if anybody asked about the bruise?

A: There was a discussion about concealing it and then a brief discussion about if somebody did see it.

Q: And was there any detail as to what should be said about the bar fight that you later talked about?

A: No. It was just as simple as she got in a fight.

Q: So it was going to be suggested by either you or she, whoever was responding, that it was a bar fight incident?

A: Suggested to [H]?

Q: If [H] was the person that was going to be asked – or, you were the person that was going to be asked, was this agreed upon, you were both going to stick to the same story? Sorry, [E] or …

A: I’m not …

Q: … or you?

A: I’m not sure. I can’t see if she was going to stick to it, or not. I, I don’t know.

Q: Well, did you leave with the, the impression in the washroom that she was going to?

A: I left the washroom and went right into the spare bedroom and almost immediately had just to, had to say that – not immediately but minutes afterwards.

Q: Yeah, because I thought she left first out of the washroom and you came later.

A: She did.

Q: All right.

A: I meant when I left the washroom.

Q: So, getting back to my question, please focus on it.

A: All right.

Q: Did you leave with that impression, that both people were going to give the same answer if this issue came up?

A: When I left the washroom?

Q: Yes, sir, the washroom.

A: The way that I seen [E] cross in front of me, with tears in her eyes, towards the spare bedroom where her sister was, I thought probably not, and it worried me.

Q: When you were in the washroom, you have told us that, and I have this written down from your earlier testimony, “We agreed on a story.” Did you not say that?

A: Maybe not agreed but, like, we, I did – like, we thought of something to say.

Q: So that would mean that both you and [E] are actively discussing to come to this story, does it not?

A: Sorry, can you repeat that?

Q: That would mean that you and [E] are actively discussing the issue in the washroom to come to this story, correct?

A: There was a small discussion about conceal, like covering it and what could be said if somebody seen it.

Q: And the discussion had to do with a bar fight?

A: Yes.

Q: And whose idea was it to use the scenario of bar fight amongst all the different things that you could use as an explanation?

A: She suggested that she just wear a long sleeve shirt so nobody can see it. And I, sir, suggested the bar fight.

Q: So you suggested to your girlfriend that she should portray herself as a person who gets in a bar fight. Is that correct?

A: Like I said, it was a terrible lie right off the top of my head but, yes, that’s what I said.

Q: All right. And when you left that bathroom, you felt that you and she had agreed on that story, correct?

A: Maybe not, not agreed. She didn’t say okay but, like I could certainly tell that she listened to what I said. She didn’t disagree with me. She didn’t really say much.

Q: So you were just making an assumption there on something so serious as a fabricated bar fight scenario that resulted in a …

A: It was …

Q: … serious injury?

A: Sir, it was just something that popped up into my head as to how you could explain a bruise. It was a silly lie that I made up, like immediately, that was dead in the water immediately after I said it, to the first person I told it to. It was a terrible lie.

Q: Okay. So it was you that decided to introduce this story, not …

A: Yes.

Q: E, correct?

A: Yes.

[132] Once a witness has been shown to have lied under oath before me on a material fact it is difficult to place any belief in what that witness says absent independent supporting evidence.

[133] Moreover, the problems with the evidence of Mr. Ladouceur do not end with the identity of the originator of the false bar fight story. There is, of course, the fact that Mr. Ladouceur made up this false story and told it to H in an effort to avoid responsibility for an assault he now admits. He made up and told another false story upon arrest in an effort to avoid responsibility for the Friday night assault he now admits. Mr. Ladouceur admitted he told the officer that he was not with E on Friday night.

[134] In addition, independent evidence either refutes the evidence of Mr. Ladouceur, supports the evidence of E, or supports the position of the Crown. First, the photographs of the major bruising to the left side of the complainant’s upper leg refute the evidence of Mr. Ladouceur as to how the assault took place. The photographs clearly show a very large bruise to the side of her upper leg. How the hitting began is contested. Mr. Ladouceur testified he struck E as a reaction to E turning with her back to the passenger door and kicking him in the ribs. E testified Mr. Ladouceur struck her as she was seated in the passenger seat with her left side facing him simply out of anger for her refusal to divulge Rob’s address. The location of the leg bruises supports the evidence of E and does not support the evidence of Mr. Ladouceur. Clearly, this was an obvious effort to minimize this assault.

[135] Second, the timing of entry into the back of the home does not support Mr. Ladouceur’s version that they arrived twice at her parents’ home and left the first time for about 10 minutes to have sex in the car. According to defence counsel during submissions, the evidence of H supports this story. I disagree. H testified she saw the lights of E’s car approach and went from her bedroom to the kitchen to await their entry. The entry was delayed because the front door was locked requiring them to walk around to the back of the house. There was nothing in the evidence of H which supported a ten minute delay as advanced by Mr. Ladouceur. Indeed, her evidence does not state or suggest any inordinate delay beyond the time necessary to walk from the front of the house to the back of the house.

[136] Third, the evidence contradicts Mr. Ladouceur’s story that when the two entered the home they did not look normal because they just had sex in a warm car. They were sweaty and messy. Both H and E testified that E walked right through the kitchen without responding to her sister’s inquiry and without looking at her sister. Mr. Ladouceur agreed. The suggestion that this admitted conduct is consistent with the afterglow of youthful, consensual sex is fanciful. So too is the suggestion by Mr. Ladouceur that E wanted sex in the car and not in the house because her sister was home. At the time these two people lived together and the sister knew it. Moreover, with the sister in the kitchen there was no hesitation of the two taking a shower together with E’s sister downstairs.

[137] Fourth, E’s evidence about Mr. Ladouceur’s aggressive insistence on getting his own way is supported by the evidence of both H and the Tim Hortons employee. Both directed Mr. Ladouceur to leave and both were met with resistance.

[138] I also consider Mr. Ladouceur’s three breach convictions although I do not put much weight in them.

[139] Finally, Mr. Ladouceur admitted he manipulated people. On cross-examination, he gave the following answer to this suggestion:

Q: And I’m going to suggest to you that over the course of those two days you did a lot of things to try to manipulate various people, the police, your girlfriend, [H], do you agree or disagree with that?

A: At the time, yes, I did.

[140] In sum and for these reasons, I reject the evidence of Mr. Ladouceur unless it is supported by independent evidence I do accept.

the complainant

[141] I heard the evidence of E over three days. I listened carefully to what she had to say and how she said it. She was subjected to a very professional yet very pressing cross-examination. She stood up well. Generally she answered questions directly. She presented well. Given the vast varieties of human personalities and the unusual and stressful setting of courtroom testimony, it is impossible here for me to draw any conclusions, whether positive or negative, from how E testified.

[142] In this case, considering all the evidence, and especially the guilty pleas by Mr. Ladouceur to the charges of assault and assault causing bodily harm, I cannot and do not draw any negative inferences from any failure to flee or raise alarm or from the briefly delayed disclosure. The complainant provided a very reasonable explanation on why she did not flee and why she delayed disclosure until the next day. I accept her explanations. Moreover, this case vividly shows the reason why caution should be used in drawing negative inferences from any failure to flee or to raise alarm. Mr. Ladouceur admitted to the very crimes about which these failures related. These so-called failures obviously did not mean that these crimes did not happen.

[143] I found E forthright. When she had no memory, she admitted it. When she denied any physical injury to the police officer at Tim Hortons she said she lied to him without prompting or pressing. When reviewing the injury photographs she was quick to advise that a visible scratch was not caused by Mr. Ladouceur but rather by a cat. On the issue of why she participated in the Hickory Acres sex, she was extensively questioned. Although at times she grappled with the correct words to convey her state of mind, E pressed through with thoughtful openness. I was impressed by this evidence.

[144] There were areas where E had little, vacillating, or no memory. But I do not find any of these pertained to any critical issue. For example, whether the two drove or walked to Mr. Biggs on Friday night is of little importance. How Mr. Ladouceur got to the Tim Hortons is clarified by others including Mr. Ladouceur himself. This does not mean that this memory issue with regard to reliability will be ignored. It will not. Even though I do not consider it to be of much significance here, I will include it in my assessment of the evidence.

[145] The defence explored some inconsistencies on cross-examination but I find that all but one cause no concern to me. That one must be explored deeper. E admitted that she omitted any mention of the oral sex on Hickory Acres during her preliminary hearing evidence. The reason she gave for this omission was embarrassment. There is no issue that it happened in the manner in which she testified. She included it at trial and Mr. Ladouceur testified it happened too. But because this was an intentional omission, it does bear on her credibility in general even though the particulars of the omission were confirmed and uncontested at trial. This too must and shall be taken into consideration during my ultimate assessment.

[146] Also concerning credibility is the admitted lie to the police officer at Tim Hortons. E denied Mr. Ladouceur physically hurt her. He obviously did and she knew it but she was not ready to report it to the police. This is another factor I will consider as I assess the credibility of E and consider the evidence globally.

[147] Of particular significance here is the confirmation of key portions of E’s evidence by the photographs, by the mid-trial guilty pleas of Mr. Ladouceur to the assault and to the assault causing bodily harm, and by the evidence of H and the Tim Hortons employee. I find this confirmatory evidence reaffirms my faith in E’s account of the events.

[148] In sum, after careful consideration of the credibility of E and the reliability of her evidence with all of the evidence presented at trial, I believe E without hesitation.

the sister

[149] H, the complainant’s fraternal twin sister, became involved only after the alleged crimes. She testified over two days. I listened to what she said and how she said it. She answered questions directly without any sign of deflection or evasion. I found her forthright.

[150] One issue needs further discussion. H described the bruising on E’s arm as being from her shoulder to her elbow. Viewing photograph 3 of Ex. 1, H conceded that her description of the bruise was much larger than the bruise shown in that photograph taken the next day. She said her description was her memory. Was this an intentional exaggeration? If so, it bears on her credibility. Or was it an inaccurate impression? If so, it can bear on her reliability. I choose the later. I saw nothing in the evidence of H, including this inquiry, which indicated in any way that she was intentionally misstating the evidence. It was, however, an inaccurate description. Its weight, however, is mitigated by the circumstances. Everyone, including Mr. Ladouceur, said, in essence, the bruise was big and disturbing. H, herself, gasped at seeing it for the first time. Plus I have no evidence of what E was wearing on her arm at the time and whether all or part of the bruise was shown. Thus it is difficult to assess the significance of the inaccuracy.

[151] In addition, and related to reliability, all witnesses gave different accounts of precisely what happened at the Tim Hortons. I have no consistent account of exactly what happened there. That said, there is consistency on the few important parts of what happened at Tim Hortons: the three came in E’s car at about midnight; the sisters were upset and asked for help; the accused was asked to leave the store and protested but did leave; the accused was crying; the accused was trying to talk to E through the store window; the police came and everybody left for their respective homes. At least with regard to the Tim Hortons portion of the evidence, all of the witnesses, including Mr. Ladouceur, may have reliability problems given the nature of that evidence.

[152] With regard to H, I am aware of the reliability issues and will include them in my assessment.

the Tim Hortons employee

[153] Ms. Joni Hillman, the Tim Hortons employee, testified about the events at her store while she was working. She knew nobody involved in the case. There is no concern about credibility.

[154] I am alive to some reliability issues. This was an unexpected event that took place two years before the trial. She did not memorialize her memory of the event until a year later when the police asked her for a statement. Her attention was not solely focused on the two sisters and Mr. Ladouceur but rather was interspersed with dealing with customers of the store. With that awareness, I accept her evidence as being accurate especially with regard to her interaction with Mr. Ladouceur and his insistence on staying, his crying, and his persistence in speaking with one of the sisters while at the window. Ms. Hillman became afraid because of the conduct of Mr. Ladouceur and called 911. I also accept her evidence as accurate with regard how the sisters presented, as distraught and very upset.

resolution of contested facts

[155] With regard to all the contested facts noted above, I resolve all in favour of the evidence of E, which I believe. As stated above, I reject the evidence of Mr. Ladouceur unless it is supported by independent evidence I do accept. When his evidence conflicts with that of the complainant, I accept her evidence and reject his evidence.

Sexual Assault - Consent

[156] The actus reus element – whether the Crown has proven beyond a reasonable doubt that there was no consent to the sex at Hickory Acres – presents the key issue before me. The complainant actively participated in oral and vaginal sex with her then-boyfriend, Mr. Ladouceur. She did not verbally protest. She did not say no. She did not resist. She was not physically forced. She was not verbally threatened in that car. Indeed, it was E who leaned over the console of the car to perform oral sex on Mr. Ladouceur and it was E who then climbed over the console to permit vaginal sex with Mr. Ladouceur. With the exception of E’s evidence, which I accept as true, that she was really upset and crying in the car at Hickory Acres, the other pure factual evidence at Hickory Acres – what was said and done there, if taken in isolation, may lead to an inability of the Crown to prove this element.

[157] But, of course, I cannot and should not so limit the evidence to be considered on this element. I must and do consider her subjective state of mind at that time.

[158] This was a relationship of control. This was a relationship of dominance and submission. When pressed why she participated in the Hickory Acres sex, although less than academically articulate, her evidence was clear: she did not voluntarily consent to sex. In addition to being visibly upset and crying in the car, E’s testimony included the following about her subjective state of mind:

[I]t was going to happen this time so I just tried to make the best of it.

[W]hen I saw that he was hard it made me really upset …, so I think I gave him orals … maybe to make myself feel like it wasn’t because of like, to make it seem that it wasn’t because of all the bad stuff that happened. … Him hitting me and getting angry.

[I]t was gonna happen and so I was just trying to make the best of it.

I wanted to make the best of it. I felt like that’s what I needed to do.

I felt like I had to do what I had to do.

I remember doing that to make it not feel so – I don’t know.

I did not want to do those things.

I knew it was going to happen eventually anyways.

I just wanted to believe that it was okay.

I wasn’t mentally in the right state of mind. I did not want to do that.

I felt defeated.

I wanted it not to feel so awful. I wanted the whole day to not feel so awful.

I just wanted to feel something.

I just felt awful. I can’t really explain it.

I wanted to die that day.

I wasn’t hoping anything. I felt defeated.

I was trying to feel.

I didn’t want to feel awful about everything. And I thought that if, like, after he said, “Thanks”, I realized that it didn’t do anything.

I just felt awful that day.

After he said [“Thanks”] I realized that he did not have any remorse at all.

I was still emotionally confused from Friday.

I was always trying to fix him.

I was trying to feel something.

I didn’t know how to feel. … I was really numb.

I knew it was eventually going to happen, and I just felt defeated.

[159] Later, when explaining why Mr. Ladouceur used her car when she did not want him to, the complainant provided a similar answer that she knew that he would not let it go until she let him use her car. A similar answer was given when explaining why she did not bar Mr. Ladouceur from the shower. She said she felt defeated in the sense that she lost control of her life.

[160] This evidence must be considered collectively. This witness obviously had difficulty expressing her feelings, her state of mind, in that car on Hickory Acres. She did not utter words which, even when taken alone, raise a reasonable doubt. Thus, as the trier of fact, I must consider them collectively in my task to determine whether or not the Crown has satisfied me, beyond a reasonable doubt, that the complainant did not consent to the sex acts on Hickory Acres.

[161] But to understand those words and actions on Hickory Acres, I also must put them in context as to what went before as well as the nature of the relationship. The preface to the Hickory Acres sex is essential to understanding the state of mind of the complainant.

[162] On Friday night, Mr. Ladouceur physically assaulted E by forcibly grabbing her by the arm leaving finger bruises. This he admits. This assault was precipitated by Mr. Ladouceur’s belief that E had been flirting with another man. After a prolonged argument during which E denied the accusation, E wanted to go and the accused would not let her. This lead to the assault when Mr. Ladouceur barred E from leaving and forcibly grabbed her arm.

[163] The next day, on Saturday afternoon after E finished work, the two headed south. On that journey, Mr. Ladouceur started another argument when he believed E was communicating with an ex-boyfriend. Mr. Ladouceur insisted on being told the address of this former boyfriend. When E refused to provide that information, Mr. Ladouceur seriously assaulted E by violently striking her multiple times on her arm and leg leaving large and ugly bruises. Mr. Ladouceur admits this violent assault. E cried.

[164] After a brief stop to get cigarettes at where Mr. Ladouceur directed E to stay in the car, Mr. Ladouceur then drove to a local arena parking lot where he attempted to have sex with E. E told him no. Mr. Ladouceur continued his yelling and E continued her crying. It was still light outside and there were people around. Mr. Ladouceur left the area.

[165] Then, after a brief stop at his father’s house when he told E to stay in the yard, Mr. Ladouceur drove to a secluded spot in the county and parked. He continued to yell on the drive. Once there he pulled down his pants exposing his erect penis. He told E, “let’s go, let’s go.” These were the almost identical words he used at the arena minutes before when he wanted sex. E was crying. This was about two hours after the violent hitting of E by Mr. Ladouceur in the same car.

[166] This is the context for the state of mind of the complainant.

[167] Counsel for the defence argues that there is no link between the violence and Hickory Acres. I disagree. The facts show continuous aggressive and abusive conduct by Mr. Ladouceur towards the complaint and the complainant’s tearful subservience. The whole time is marked by yelling, by crying, by dominance, and by submission. The spectre of the very recent violence is impossible to dismiss with these facts.

[168] The evidence of E, corroborated by H and by the Tim Hortons employee, establishes, beyond a reasonable doubt, that this was a relationship of dominance and submission. Mr. Ladouceur made demands on E and any non-compliance led to aggressive argument, abuse, and violence. So when a crying E meekly submitted to a demand for sex – and I do find that exposing an erect penis while saying “let’s go” was a demand for sex – it is impossible to categorize this as voluntary.

[169] When a complainant participates in or outwardly consents to sex, as in the case before me, although not necessarily determinative of the consent issue, it certainly makes the search for a subjective state of mind much more difficult than the common credibility/reliability determination. It is, of course, axiomatic that any consent must be freely and voluntarily given to be recognized in law. But a determination of a person’s state of mind, without a definite assertion, from a stream of expressions from a less than articulate witness coupled with the preceding events and the nature of the relationship presents a daunting task. It also raises wider questions.

[170] Can sex in an abusive, violent relationship marked by dominance and submission ever be consensual? In my opinion, it can. The accused’s version in this case is one quick example and I am sure there are more. However, in my opinion, recent, serious violence makes a free and voluntary consent quite problematic because of its dark presence. But each case is very fact-driven and it is less than helpful to articulate the number of ways to prove any element.

[171] Voluntariness is defined as free choice. Does an acceptance of the inevitable while wishing for something positive make the choice voluntary? Or does that merely reflect the human spark in all of us seeking for something good to emerge from that which is forced. Does a wish for a good outcome when forced to do something at the tip of a bayonet convert the decision to voluntary? Or, to use a very extreme example, does a tortured confession agreed to from a desire for a pain-free existence somehow make it voluntary? Does submission by resignation with the desire for something better convert it into a free and voluntary agreement? I think not. Tearful obedience with the desire it will bring something positive is not a free and voluntary choice.

[172] This is underscored by Justice Fish’s words, “’Consent’ is … stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement of … a compelled will.”: Saint-Laurent, at p. 311. The passive obedience from a compelled will is not lawful consent.

[173] I find, beyond a reasonable doubt, that there was no consent for the sex at Hickory Acres. The participation by E in these sex acts was not freely and voluntarily given but rather was a product of the earlier application of violence on her by Mr. Ladouceur coupled with his relentless and coercive dominance over her. Her submission was not consent. I totally reject the defence position of consensual “make up” sex with a crying woman after very recent and serious assaults upon her.

[174] With regard to the mens rea element I find that Mr. Ladouceur knew E was not consenting to sex at Hickory Acres. This was a crying young woman after very violent assaults by him. Mr. Ladouceur admitted the recent and serious assaults on E. He was present witnessing her distress and crying. As reviewed above, I totally reject his evidence that E was the instigator of “make up” sex. I find, beyond a reasonable doubt, after considering all the evidence, that the accused knew the complainant did not freely and voluntarily consent to this sex.

[175] With regard to any defence of honest but mistaken belief in consent, I find, on the facts of this case, that there is no air of reality in such a defence in this case especially on the issue of a honestly held belief that the complainant voluntarily agreed to engage in sex. Even assuming a continuing claim of no actual knowledge, the evidence on its face shows at least wilful blindness on the part of Mr. Ladouceur given her crying and the very recent violence. He certainly did not take reasonable steps in the circumstances to ascertain that she was consenting. Moreover, even assuming there is an air of reality, I would find that the defence fails for exactly the same reasons reviewed above.

Mischief

[176] After considering all the evidence, I find, beyond a reasonable doubt, that the accused wilfully damaged the property of the complainant, namely her car visor, visor mirror, and stereo, without legal justification or excuse, and without colour of right, on May 21, 2016. The value of the damage was less than $5,000. Mr. Ladouceur did this damage when he left E’s parents’ home in the complainant’s car after being told to leave. He was angry because he did not want to leave. Indeed, after a short period of time he returned to the house again insisting on staying the night. It was in this brief period when Mr. Ladouceur was angry and in the car alone that the damage took place.

[177] I totally reject the evidence of Mr. Ladouceur in this regard that he did not damage the car stereo and damaged the visor earlier in the day out of frustration following his violence against E. His evidence in this regard does not raise a reasonable doubt with me.

Friday Night Assault

[178] Mr. Ladouceur testified that his grabbing of E’s arm was to prevent her from driving after drinking. I reject his evidence and it does not raise a reasonable doubt with me. After considering all of the evidence, I find, beyond a reasonable doubt, that Mr. Ladouceur forcefully grabbed the upper arm of E, sufficiently hard to leave finger bruises, because he did not want E to leave him. This violence against her had nothing to do with drinking but rather was during an ongoing argument instigated by Mr. Ladouceur over his claim that E was flirting with an older man at the bar. E wanted to leave and Mr. Ladouceur would not let her, grabbing her arm and blocking the door.

Assault Causing Bodily Harm

[179] Mr. Ladouceur admits this crime but contests the nature and extent of the force used to cause the bruising to the leg and arm of the complainant. He concedes that it took place during an argument with E over Rob, an ex-boyfriend of the complainant. Mr. Ladouceur testified that his violence against E started when E slapped him in the face. He became angry and reacted by hitting her left arm hard with his fist two or more times. According to Mr. Ladouceur, E then turned her back to the passenger door and kicked him in the ribs. The accused responded by punching the complainant hard on her upper left leg three or four times.

[180] For reasons more fully set forth above, I reject the evidence of Mr. Ladouceur including this evidence, beyond a reasonable doubt. Considering everything, it does not raise a reasonable doubt with me.

[181] I accept, beyond a reasonable doubt, the evidence of the complainant on this issue. She never hit, kicked or slapped Mr. Ladouceur. She was the recipient of Mr. Ladouceur’s blows given out of anger and jealousy because she would not divulge the address of a former boyfriend. The location of the big bruises on the left upper leg of the complainant supports her version of the event and its location is inconsistent with Mr. Ladouceur’s version that he struck her in the leg in response to her kicking him while her back was to the passenger door.

[182] With regard to the number of blows struck, the evidence of both the complainant and the accused is approximate. E testified the number was about twenty. Mr. Ladouceur testified he hit her two or more times in the arm and three to four times to the leg. I have seen the photographs of the large and ugly bruises. Although I have no evidence from which to conclude precisely how many blows were struck to the arm and to the leg, I can and do find that there were many hard blows, given the nature and size of the bruises. I make this finding beyond a reasonable doubt.

CONCLUSION

[183] For the above reasons and after reviewing all of the evidence, I make the following findings:

Sexual Assault

1. I do not believe Mr. Ladouceur’s denial that he did not sexually assault the complainant.

2. I am not left with a reasonable doubt by the evidence of Mr. Ladouceur as to any essential element of the crime of sexual assault.

3. On the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Ladouceur of the sexual assault of E. I find that William Scott Ladouceur had oral and vaginal sex with E – his penis in her mouth and vagina – without her consent. I find, beyond a reasonable doubt, that at the time of these sex acts, E did not freely and voluntarily consent.

[184] Accordingly I find WILLIAM SCOTT LADOUCEUR guilty of sexual assault on E on or about May 21, 2016, contrary to Section 271 of the Criminal Code of Canada as charged in Count 3 of the indictment.

Assault

1. I do not believe Mr. Ladouceur’s claim that he grabbed the complainant by the arm to prevent her from driving after drinking on Friday night.

2. I am not left with a reasonable doubt by the evidence of Mr. Ladouceur as to the reason for his assault on the complainant on Friday night.

3. On the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Ladouceur of the assault of E on Friday night. I find that William Scott Ladouceur assaulted E by grabbing her on the arm to prevent her from leaving and that this had nothing to do with drinking and driving.

[185] I make these findings concerning the assault on E on or about May 20, 2016, contrary to Section 266 of the Criminal Code of Canada as charged in Count 1 of the indictment.

[186] Further, on June 7, 2018, William Scott Ladouceur pled guilty to this assault admitting all the essential elements of the crime. Accordingly I find WILLIAM SCOTT LADOUCEUR guilty of assault on E on or about May 20, 2016, contrary to Section 266 of the Criminal Code of Canada as charged in Count 1 of the indictment.

Assault Causing Bodily Harm

1. I do not believe Mr. Ladouceur’s claim that he struck the complainant in reaction to her striking him.

2. I am not left with a reasonable doubt by the evidence of Mr. Ladouceur that he struck the complainant in reaction to her striking him.

3. On the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Ladouceur of the assault causing bodily harm on E. I find, beyond a reasonable doubt, that Mr. Ladouceur assaulted E in the car out of anger and jealousy when E refused to give him the address of a former boyfriend.

[187] I make these findings concerning the assault causing bodily harm on E on or about May 21, 2016, contrary to Section 267 of the Criminal Code of Canada as charged in Count 2 of the indictment.

[188] Further, on June 7, 2018, William Scott Ladouceur pled guilty to this assault causing bodily harm admitting all the essential elements of the crime. Accordingly I find WILLIAM SCOTT LADOUCEUR guilty of assault causing bodily harm on E on or about May 21, 2016, contrary to Section 267 of the Criminal Code of Canada as charged in Count 2 of the indictment.

Mischief

1. I do not believe Mr. Ladouceur’s claim that he only damaged the car visor but not the car stereo.

2. I am not left with a reasonable doubt by the evidence of Mr. Ladouceur that he did not damage the car stereo.

3. On the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Ladouceur of the wilful damage to the property of E namely her car visor, visor mirror and stereo. This damage was done without legal justification or excuse and without colour of right. The value of the damage was less than $5,000. I find, beyond a reasonable doubt, that Mr. Ladouceur damaged this property after being told to leave the house when he was angry and in the car alone. I make these findings beyond a reasonable doubt.

[189] Accordingly I find WILLIAM SCOTT LADOUCEUR guilty of mischief under $5,000 on or about May 21, 2016, contrary to Section 430(4) of the Criminal Code of Canada as charged in Count 4 of the indictment.

Original signed by “Munroe J.”

Kirk W. Munroe

Justice

Released Orally and in Writing: September 5, 2018

[^1]: A s.486.4(1) non-publication order was made. Accordingly, I will use “the complainant” or the initial “E”, rather than the real name of the complainant, and will use “sister” or the initial “H”, rather than the real name of the complainant’s twin sister.