R. v. J.C., 2018 ONSC 5547

COURT FILE NO.: CR-17-70000095-0000 DATE: 201809 20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – J.C. Defendant

Counsel: Emma Evans, for the Crown Stephen Proudlove and Andrea VanderHeyden, for the Defendant

HEARD: June 19 - 22, 2018

QUIGLEY J.:

REASONS FOR JUDGMENT

Introduction

1J.C. is charged with seven sexual assault-related offences. Counts one, four and six allege that he sexually assaulted H.D. during three periods of time between December 1, 2014 and June 30, 2015.

2He is charged in count two with having unlawfully and surreptitiously made a visual recording of H.D. on a video camera while she was engaged in explicit sexual activity, contrary to s. 162(1) of the Criminal Code.

3The Crown alleges that J.C. then used that compromising video to threaten H.D. that if she did not continue to have sex with him when he requested it, he would post the video on the Internet. This gives rise to the three charges of extortion by inducing H.D. to engage in sexual intercourse by threats, contrary to s. 346(1) of the Code. As in the case of counts one, four and six, counts three, five and seven relate to the same three periods: (i) from December 1, 2014 to January 31, 2015; (ii) from March 1, 2015 to June, 1 2015; and (iii) from June 1, 2015 to June 30, 2015, albeit at two different addresses in Toronto, one on Bathurst Street and one on Danforth Avenue.

4In light of the overlap and duplicative aspects of these charges, and having regard to the principles in Kienapple v. R., I have amended the indictment to more closely conform to the evidence. As amended, the indictment now reflects four rather than seven charges: Counts 1 and 2 (Sexual Assault and Voyeurism (the making of the video) relating to the period up to and including January 22, 2015); and Counts 3 and 4 (Extortion and Sexual Assault relating to the period from January 22, 2015 to June 30, 2015).

5Only two witnesses testified at this trial: H.D. and J.C. H.D. described the history of their relationship and the circumstances that gave rise to these charges which led her to report to the police on July 30, 2015. J.C. denies the charges in their entirety. He claims that the relationship was entirely consensual. He testified that H.D. was a willing, conscious and active participant in their sexual activities at all times, that she consented to the making of the explicit video, and that he did not threaten that he would post the compromising video online if she did not continue to have sex with him.

6In a case like this, where there is no third-party evidence or external corroboration of any conduct, determining if the Crown has proven the charges beyond a reasonable doubt falls entirely to the legal definition of consent, whether the complainant was capable of forming consent at the time that the video was made, and whether she was later induced by J.C.’s threats to continue to have sex with him after that encounter. That final question depends upon an assessment of the credibility and reliability of the testimony of each of the two witnesses taken as a whole.

AGREED STATEMENT OF FACTS

7The parties agreed that a search warrant executed on August 10, 2015 led to the discovery of a laptop and Go Pro camera in J.C.’s possession. They further agreed that a forensic examination following the search confirmed that the video was saved on that laptop. The file was created on January 22, 2015 and was saved under a “Videos” folder. The video that is the subject matter of one of these charges, was found with the file name “H..MP4” (the complainants first name which cannot be published) at the itm path D\Users\P.Y.\Videos\H..MP4. It was created on January 22, 2015 at 6:41:22 pm. It is 51 seconds in length and depicts explicit sexual activity involving H.D.

8The parties further agreed that the forensic examination following the execution of the search warrant also confirmed that the video was shot using the Go Pro camera found in J.C.’s possession.

H.D.’s Evidence

9H.D. was 19 when she met J.C. He was 25. She remembers meeting him in 2014. J.C. testified that they met at a party while she was distributing flyers outside one of the clubs in the entertainment district. H.D. had no recollection of that. What she does recall is that he messaged her and asked her if she wanted to hang out with him. At that time, he was employed part-time providing cleaning and maintenance services at a building in downtown Toronto. He was also engaged part time as a disk jockey – a DJ in the entertainment industry.

10They got together and became friends, but their friendship progressed to including a sexual component. However, H.D. never considered J.C. to be a boyfriend. It was simply a casual sexual relationship from time to time. She said they would see each other once a week or once every two weeks, hang out together, talk about music, sometimes smoke marijuana, and then frequently have sex. H.D. wanted to obtain employment in the entertainment industry and she claimed J.C. said that he could help her.

11However, in October 2014, they stopped being “friends with benefits.” H.D. ended their relationship because she had started to date someone else. However, J.C. did not want the relationship to end and became insistent with her that it continue. She did not want that and she stopped contacting him and responding to the text messages that he continuously sent to her over the following month or two.

12Sometime later in 2014, H.D. and the new boyfriend broke up. She once again initiated contact with J.C., but she said it was for a different purpose than initiating a sexual relationship. H.D. believed that J.C. could help her with her wish to move into a music related career. She contacted him on the recommendation of two friends, for the purpose of helping her advance her music career.

13H.D. said she and J.C. got together again in late December 2014 or in early January 2015. Other evidence establishes that the date was January 22, 2015. She went to his apartment near Bathurst and Queen. She testified that she was not sure if she had been drinking before she got there, but she recalled that she was not feeling either drunk or impaired. They were hanging out together, but then she said she suddenly started to feel nauseated and disoriented. She blacked out. When she woke up, she found that she was not wearing any clothes from the waist down. J.C. told her that they had sex, and that he made a video of her while they were having sex.

14She does not recall having had anything alcoholic to drink while at his apartment, and testified she consumed only water. Although she initially said that J.C. provided her with the glass of water, she remembered in cross-examination that she had obtained the water herself from the tap in his kitchen. All she remembers is that she became fuzzy and nauseous and must have blacked out, but then awakened to find that she was on his bed wearing only her shirt. She had no recollection of what happened before she blacked out and in particular does not recall any kissing or foreplay.

15H.D. testified that the disorientation she experienced was unlike anything that had ever happened to her when she had been consuming alcohol and marijuana. She believed it came from something else. She was disoriented and dizzy when she woke up, and did not know how much time had passed. She does not remember a specific conversation, but said J.C. started to play a video of her for her on his laptop. She recalled the video being short, and that she appeared disoriented in the video. Although she acknowledged that she appeared to be awake in the video, she observed that the way she was behaving was not normal for her. She testified that she appeared to be slurring her words and under the influence of something other than cannabis and alcohol. Evidently, she and J.C. did not have any significant discussion about the video at that time.

16However, H.D. was upset and scared because, as she insisted in her testimony, the sexual activity had not been consensual. Yet, J.C. was in possession of a videotape that appeared to show her as a willing and responsive participant in sexual activity, which included her masturbating and displaying her anus to the video camera in response to his request. While the video does record his voice and a distorted appearance of his face for a brief nanosecond, it is almost entirely focused on her alone. It ended with a close up of her face where, in response to his recorded request, she appears to have repeated "I love your dick".

17H.D. said she got dressed after she saw the video. She went home on the TTC about 20 minutes later. She did not recall having any conversation with J.C. about the video on the night it was made, but a few days later (possibly two or three days later) she testified that they had a conversation in which he told her that he would put it on the Internet if she did not continue to have sex with him. She described that he was smug – almost excited about his position of dominance – as he told her about the video.

18H.D. testified that J.C. told her that no one would ever believe, and she could not prove, that the sex was non-consensual, given the seemingly consensual contents of the video. She was afraid because he was “not the kind of person to not do what he threatened”, and she believed that he would post the video on the Internet if she did not continue to have sex with him whenever he wished.

19H.D. testified that she and J.C. had no prior discussion about having sex that night and that she did not want to have sex with him on that occasion. There had been no physical contact before she passed out; no kissing or any other type of preparatory interaction. She was insistent that she never told him that she would have sex with him, that she did not consent to having sex with him, and that she did not consent to him making a video of her while engaged in sexual activities.

20A week or two later, he texted her but she did not recall what he said. She went over to his house to see him and he told her that he needed her to go on having sex with him. She agreed since she was afraid he would post the video online. She continued to have sex with him, both at the Bathurst and Queen apartment, and later at an apartment he lived at near Danforth and Main after he moved there sometime in the spring of 2015. H.D. said that all of those sexual encounters were non-consensual, although they did not discuss her unwillingness to participate on every one of those occasions. She said he continued to tell her that he would share the video online if she did not comply with his wishes.

21While she did not want to have sex with him on those occasions, H.D. acknowledged that he did not use any force against her. She did not recall initiating any of their get-togethers, although in cross-examination she acknowledged that a couple of occasions may have been initiated by her when she wanted him to provide her with marijuana. She thought that they had sex six or more times in this manner before July 30, 2015 when she went to the police.

22H.D. testified that she did not feel she could say no, and that she would not have had sex with him if not for the video. She did say no to him on at least one occasion, although she could not recall the specifics. In response, he told her she needed to continue to do this when he requested.

23H.D. also testified that J.C. used his possession of the compromising video to entice her to have sex with several of his acquaintances. She believed that happened three times. Again, she was afraid that he would post the video if she did not comply. So, she testified she had sex with those people on two or three occasions.

24H.D.’s interactions with J.C. came to an end when she accidentally, while intoxicated, disclosed her relationship with J.C. to her boyfriend, who she had gotten back together with in the spring of 2015. She told her boyfriend that she had had non-consensual sex with J.C. and had been sexually assaulted by J.C. a number of times, not only during the period when she and the boyfriend were together, but also during the periods when they were apart. H.D. said the disclosure just slipped out when she was intoxicated as she and her boyfriend were having other discussions about their own relationship. After that, he and his friend encouraged her to go to the police.

25Two weeks later, on July 30, 2015, H.D. went to the Toronto police and gave a video statement to Detective Zambri. That became the foundation for these charges. Although she acknowledged that she was aware that she was being filmed at the time that the filming was taking place, she concluded her evidence in chief insisting that she had never agreed to be filmed.

26It was put to H.D. that she and J.C. had gotten together in late November or early December 2014, when she went to him looking for work, he offered her a cleaning job through his friend P.Y., and then they engaged in consensual sex. Of note, this would have been after she had told him that she did not want to continue on with their previously consensual relationship and before the occurrence where the video was made. She had no recollection of that.

27H.D. acknowledged that she used a lot of drugs and alcohol during that time, and that she was addicted to cocaine and ketamine by February or March 2015. She also acknowledged her diagnosis as having a borderline personality disorder, depression, general anxiety, and since these events, post-traumatic stress disorder. She was being prescribed drugs for the depression and anxiety conditions during this period of time in 2015. She acknowledged those drugs have side effects that include reduction of memory function.

28When questioned about the first time they had sex in December 2014 to January 2015, H.D. acknowledged she has memory problems due to her memory issues and the medications that she takes. She acknowledged that she had testified at the preliminary inquiry that she had said that it might have been after a party, but in her testimony before me, she clarified and indicated that she had mixed up two separate events. At the preliminary inquiry, she had said that the time they had sex after a party was leading into the video, but before me she said that was not correct. She did not believe she had actually been drinking in the time preceding her sexual encounter with J.C. during which the video was made, but she could not be certain.

29She acknowledged that she had obtained a glass of water by herself from the tap on that occasion, but said there was a possibility that he had given her a drink. She does not recall pouring it herself and believed that her testimony at the preliminary inquiry might have been inaccurate. She testified that she has stronger memories now because she can remember whether she poured a drink for herself or he did. However, she had no memory of him pouring water for her, so she acknowledged that her earlier statement must have been inaccurate.

30In her testimony, H.D. had a recollection of the video events happening. She said she recovered that memory later. She did not remember it originally but only after the preliminary inquiry. Nevertheless, the first time she made that statement was at this trial and she acknowledged that despite numerous opportunities to do so, she had not disclosed that recovered memory to the Crown or to the police. She also acknowledged, contrary to her original statement to the police, that the video does not actually show penetrative intercourse by J.C.

31H.D. was uncertain about when she and J.C. first discussed the posting of the video online, but she believed it happened a day or two after the video was taken. She was unable to recall the words that were used at that time. She thought that she and J.C. had non-consensual sexual interactions six or seven times in total after the video incident, of which three times occurred at the Bathurst Street apartment and three times at the Danforth apartment. She does not remember whether they had sex on every occasion they encountered each other.

32Despite H.D.’s testimony that the communications between her and J.C. were largely by text, there was no evidence of that text messaging that she was able to provide to the police, nor could she provide call logs. She said the reason was because the phone belonged to her parents and they knew nothing about any of these events. She explained to the police that she could not involve them in this matter. She also acknowledged that she did delete some messages from J.C. simply because she did not want to see them again.

33H.D. acknowledged that they may have only discussed the posting of the video online on one, and maybe more than one, occasion. But, importantly, she was insistent in cross-examination that she had specifically and insistently asked J.C. to delete it. She had a specific recall of the occasion where she asked him for the first time to delete the video and he said no. She believed there was a second occasion when she asked him to delete it, although she could not be certain. H.D. was adamant, however, in resisting the suggestion made in cross-examination that she had never asked him to delete the compromising video.

34H.D. testified that there was a time when she told the Crown that she did not understand or realize that the initial sexual events with J.C. were non-consensual, but that was a question of legality, rather than her knowledge that she personally was not consenting. Through the course of her discussions with the Crown, her psychiatrist, and victim impact services, she had come to understand that the law has a broader meaning of what is consensual and non-consensual in particular circumstances.

35After the video was recorded, and although she asked him to delete it, she did not have specific recall of an occasion where she specifically confronted him and said that she would not have sex with him. Nevertheless, she claims she did protest the demands that he made against her. In their later sexual encounters, she said that did not happen by words but rather by her actions. She said she protested “in other vocabulary that [she] did not want to have sex with that person.” Whenever she did that, he reiterated the threat.

36At the preliminary inquiry, she had stated at pages 72 to 73 of the transcript that she did protest against having sex with J.C. after the video had been taken. Defence counsel put to her that she had never said that to the police, but that also is incorrect. H.D. agreed in chief that she had protested as indicated at pages 58 and 59 of her video statement to the police – an important point relative to consent and absence of consent in the period following January 22, 2015. She also said that she had said no on at least one other occasion.

37In spite of acknowledging and insisting that she did not want the sex to happen with J.C., H.D. did admit that she did participate on the occasions when they did have sex. She also acknowledged that he did not always initiate their get-togethers. If she needed marijuana she would contact him, and sometimes they would have sex. So, it was not always J.C. who initiated their get-togethers after the video was made. She also acknowledged that when J.C. wanted to see her on Mother's Day, and she said she could not see him that day because she had to go to her mother's house, he was accommodating and actually took her to buy flowers for her mother.

38In her July 30, 2015 police statement, H.D. told the police that the non-consensual sexual encounters had taken place between five and 10 times. She acknowledged that the transcript of her police statement, at pages 70 and 71, confirms that that is what she reported to the police, and she adopted that, admitting that her memory three years previously would definitely have been clearer than it was as she testified before me.

39In her testimony, she admitted in cross-examination that she had told the police they were having intercourse on the video but she agreed that there was actually no sexual intercourse, per se, depicted on the video. When it was suggested to her that she had not seen the video before and that was why she said that to the police, H.D. vigorously disagreed. She said she expected there to have been sexual intercourse because she did not know when the video had ended and she did not know that the battery had died (thereby ending the recording). She only remembered having seen the video once, and that was just when she woke up after having been blacked out. She never saw it subsequently.

40It was suggested to H.D. that it was just her supposition that J.C. would put the video online rather than a threat that he actually made, but again, she vigorously resisted that suggestion, insisting that J.C. had specifically told her that he would post that compromising video online if she did not continue to provide him with sexual favours.

41When she initially gave her statement, H.D. had told the police that in October 2014, after she had started to see the new boyfriend, her new boyfriend had told J.C. to leave her alone when he continued to persist in trying to contact her. However, she testified before me that she did not know whether it was the boyfriend that told J.C. to leave her alone, or if her boyfriend had told her to insist with J.C. that he leave her alone. In any event, this occurred prior to the creation of the video, in December 2014 or early January 2015.

42H.D. also agreed that after the second time she broke up with the boyfriend (with whom she has now been living full-time for the three years since these events took place), she had voluntarily seen J.C. even though that was after the video had been made, and she acknowledged that it was correct that she continued to see him after she started seeing the boyfriend again. However, the boyfriend would not have found out about these events had H.D. not been high on ketamine in the middle of July 2015 when the story, as she described it, accidentally slipped out.

43Finally, it was suggested to H.D. by defence counsel that the entire matter was a fabrication because she needed a reason to account for the disclosure that she made to the boyfriend, and that she had also been fabricating that she was intoxicated during the time when the video was made. However, she denied those suggestions and insisted that she had been intoxicated on something and had blacked out. She firmly denied that the entire matter was a fabrication.

44In re-examination, H.D. clarified that she had not told the police that she went to a party before she went to J.C.’s house the night that the video was made. H.D. also clarified that while there was only one specific occasion when they had discussed the posting of the video, she did protest on numerous other occasions. He continually told her "you need to do this", even though she could not recall the exact words that were stated on those other occasions. She did specifically recall that the discussions took place as she had reported them to the police.

45Finally, when asked to clarify whether she continued to see J.C. because of her interest in being advanced in the music industry, she denied that allegation. She said he never assisted her with her interests in the entertainment business, and she only kept seeing him because of the video and the potential threat of it being posted online and embarrassing her severely.

J.C.’s Evidence

46J.C. denies H.D.’s entire story, denies that they ever had non-consensual sex, and denies that he extorted her to have sex with him after the video was made by threatening to post it online if she did not have sex with him.

47I have recounted here what I regard as important pieces of J.C.’s evidence as they bear on these reasons, but have not felt it necessary to recount his testimony to the same extent as the complainant’s evidence. That said, there are several important aspects of J.C.’s evidence that bear on my final decision in this case that are addressed in the analysis section that follows.

48J.C.’s evidence was that he first met the complainant in the spring or early summer of 2014. He said he had been at a party at a club downtown and she was outside handing out flyers. They talked briefly. He says she told him to send her a “friend request” on Facebook and send her a message. A few weeks later, he looked her up on Facebook and she accepted his friend request.

49After another few weeks, he reached out to her and they got together. She wanted some pot, and they smoked together and talked when she went to his apartment. He recalls that it was daytime and then they had sex together. He acknowledges that he was attracted to her, and that attraction continued and intensified throughout the period relating to these offences. He said they developed “a relationship of sorts.” He described it as a casual friendship with sex. He saw her again a couple weeks later. This pattern continued between them until October 2014.

50J.C. had worked as a maintenance man in a downtown building, but he was trying to push himself ahead in the entertainment industry. He was a club promoter and a part-time DJ. As their friendship continued, he continued to provide H.D. with marijuana, accompanying the casual friendship with sex.

51J.C. testified that he wanted to have a closer relationship with H.D. While he acknowledged that he was “polyamorous”, meaning that he had sex with numerous partners on a regular basis but without any sort of tied down relationship, he also was clear that he was specifically attracted to H.D.

52But late in October, she took up a relationship with a new boyfriend and told J.C. that she did not want to communicate with him anymore. He acknowledged that H.D. and this new individual were seeing each other as boyfriend and girlfriend, but he nevertheless continued to reach out to try and continue his relationship with her. He acknowledged that he was persistent, although he did not like that word because he genuinely and sincerely liked her. However, he eventually gave up trying to contact her when she did not respond. He acknowledged as well that he had relationships ongoing with other women during this period of time.

53J.C. said he next connected with H.D. towards the end of November 2014 or early December 2014. H.D.’s friend, Amber, had suggested that H.D. contact him to try and obtain employment. Amber and H.D. were apartment roommates, but did not know that each had a connection to J.C. He says that J.C. then reached out to him. They got together and he received her resume. He says his thoughts were purely professional, and he offered her a position doing maintenance in the building, but she did not want to be a janitor. She wanted to be engaged in entertainment work. As they talked, he said he asked her if she would like to smoke marijuana. They did smoke, and then he said they had sex. J.C. said that H.D. was still involved with her boyfriend at that time.

54The next time they saw each other was early in 2015. During that period, most of the downtown clubs were closed, being just after the busy Christmas holiday season, but he thought he saw her downtown. He tried to reach out, but once again, she was not responsive. Some time later, the date now known to be January 22, 2015, he said she reached out to him looking for pot. Despite the breaks in between the casual occasions when they saw each other, J.C. maintained in his testimony that they still had an ongoing relationship. As he put it: “I don’t think that it ever really ended”. It was just that there was no consistency or regularity to when they met. After H.D. had told J.C. that she would not see him anymore, he was happy that she changed her mind and saw him several times after October 2014, because he said he was “sad” without her and thought that he would treat her better than her present boyfriend. By late January 2015, they were speaking to each other again.

55On January 22, 2015 she came over to his apartment. That was the occasion when the video was made. After smoking some pot, they engaged in sex. He said that as he was performing oral sex on her, he asked her if he could turn on his video camera. That was the first time that he had seen her in a couple of months. He said that she consented, so he got up to get the camera and started to record her while she was masturbating. The total length of the video footage is 51 seconds. It only lasted that long because J.C. said that the battery died. Despite its short length, the video footage does show her masturbating, naked from the waist down, showing her anus to the camera, and responding to his request that she say on camera that “she loved [his] dick.”

56He claimed that they continued to have sex together after the camera turned off. He testified that she was sober and did not appear to be impaired. She did not tell him that she was impaired, and he said she had no different response to the marijuana than she had on any prior occasion. Neither of them was drinking other than top water, and she had served herself according to his testimony. J.C. said he did not put anything in her drink and he did not see any change in her degree of consciousness. He was insistent that the sexual activity that night was consensual. She did not say “no” and they continued in their sexual activity.

57J.C. said that he did not mention the video again after that event. He also said H.D. didn’t either. He initially stated that he had never shown her the video, she had never seen it in his possession, and she had never asked him to delete the video. Instead, he had transferred the video to “his computer” (actually the computer belonged to his friend, P.Y., as discussed below), the same computer on which he kept his DJ music. He said that computer was principally used to record their performances as DJs at various gigs. He said P.Y. was his best friend and he was using P.Y.’s laptop with his consent because J.C. said he did not have another computer.

58J.C. insisted that he never played the video for H.D. He said that she never mentioned it again. However, he then admitted that he did mention it again: one day a few weeks after the video had been recorded when he said to her “you look cute on camera”. He acknowledged that on that occasion, H.D. specifically asked him to delete it. However, he said he was not going to delete it and wanted to keep it for himself, because he found it to be sensual and it reminded him of her. He claimed he had not refused to delete the video but simply explained to her why it was that he wanted to keep it, although the difference was unclear to me. Contrary to H.D.’s testimony, J.C. said that he did not use that video to extort her or induce her to have sex with him.

59In the months that followed, they continued to step out together, during a period when she apparently had once again broken up with the boyfriend with whom she has been in a long-term relationship. He also confirmed H.D.’s testimony about buying flowers on Mother’s Day. He recalled that they did not have sex that day.

60At some point during the spring of 2015, J.C. moved to an apartment on the east Danforth, probably around May 15. Both before that move and after, up until June 2015, they continued to have occasional sexual encounters. In his mind, he thought that the relationship had simply been a continuance of their relationship prior to October 2014. Then, however, J.C. learned that H.D. had gotten back together with the former boyfriend. That was some time after May 15, 2015 when he had moved to the east end.

61Nevertheless, J.C. acknowledged that he wanted H.D. to be his girlfriend, as part of his “polyamorous lifestyle”, and that he wanted to spend more time with her. He suggested that most of the occasions they got together arose at her instigation and all were consensual. He said she frequently wanted him to perform oral sex on her.

62J.C. indicated that he never initiated sex with H.D. when she said no. He said that she never tried to stop him or protested against him having sex with her. He believed all of their sexual activities were entirely consensual. He testified that he generally asked her what she wanted to do sexually, and when she would tell him, he took that as consent. Further, if she reciprocated, he took that as consent. He was insistent, however, that if she did not reciprocate he would not proceed further, but that that had never happened.

63J.C. also denied H.D.’s allegation that he forced her to have sex with other friends of his. He denied that and said he actually wanted a stronger more connected relationship with her, and would never have forced her to have sex with other individuals.

64Their relationship ended on June 2 or 3, 2015 when H.D. just abruptly stopped messaging J.C. at a time when he had an understanding that she had gotten back together with the boyfriend. He thought he had probably texted her 3 to 4 times over a weekend about a sweater that belonged to him that he wanted to have returned, but that was it. He stopped trying to contact her in early July 2015. He testified that he never received an explanation from her as to why she stopped communicating with him. He never heard from her again. The next occasion involving her was when he was arrested on August 10, 2015 and charged with these offences.

65In cross-examination, J.C. acknowledged that at the time of these events, he was 28 when H.D. was only 19. He was considerably older than her. He is now 31 and she is now 22. J.C. acknowledged he does have a criminal record for an assault causing bodily harm conviction dated November 17, 2015, for which he received a suspended sentence and probation. There are no other entries on his record.

66It was put to J.C. that when H.D. ended the relationship after October 2014, he had persistently continued to try to message her to continue the relationship. Crown counsel suggested that he was simply not taking no for an answer. He acknowledged that he had strong feelings for H.D., but he denied the suggestion that he was “persistent”. He did not like that word. From his perspective, looked at in retrospect, there really had been no breakup with H.D., and that instead the relationship continued until June 2015. He preferred to regard it as an ongoing relationship with “hiatus periods”, but he also acknowledged that it bothered him considerably when she initially ended that relationship in October. He wanted the relationship to continue and he wanted to see more of her, with all that came with that relationship.

67J.C. said that he had not seen H.D. since late November 2014 when they got together on January 22, 2015 – the date the video was made. He admitted that he was continuously reaching out to her during that period, but that she was non-responsive. When it was put to him that they had not had sex at the time of the December 2014 meeting, when she came over with her resume, he disagreed. He flippantly added the seemingly unnecessary observation that H.D. was “promiscuous” and that “having a boyfriend would not have prevented her from having sex” with him.

68When cross-examined on the content of the video, J.C. denied all of the Crown's allegations that went to the question of H.D.’s capacity and whether that sexual activity and the making of the video was consensual. He said H.D.’s conduct on that video was normal for her. He said she was an enthusiastically sexually active woman. He thought her voice sounded normal. He disagreed that she appeared to be impaired. He disagreed that he had used P.Y.’s laptop to play the video for H.D., responding that he could not play it because the battery was dead on the camera, but not really responding to the question that was asked.

69J.C. disagreed that he threatened H.D. or that he told her that no one would believe her their sex was non-consensual because of the presence of the video. However, he also agreed that apart from the momentary sound of his voice, he does not actually appear in the video – only H.D. does. He also acknowledged that an explicit sexual video like that would cause shame and embarrassment to her if it came into the public domain.

70J.C. said he respected H.D. "to an extent", but he admitted that when she asked him to delete the video, he refused to do so. Yet, in spite of that refusal, he insisted that he had no malicious intent in wanting to keep the video for its salacious value to him. It obviously was a source of sexual excitement to him, and he acknowledged that he watched the video on his own on several occasions after it was made, yet insisted he had never shown it to H.D.

71When questioned about the use of P.Y.’s computer, J.C. acknowledged that he created the specific folder on that computer that held the explicit video of H.D. He acknowledged he put a “different” label on it because "[he] did not want to risk it being seen inadvertently.” When he and P.Y. had a falling out, he said had not been asked to return P.Y.’s computer, which I found unlikely, even though it had recordings of their DJ gigs. He said P.Y. had another computer. Crown counsel put it to J.C. that he created the folder on P.Y.’s computer to conceal the H.D. video, but he denied that he was trying to conceal it, though it was plain to me that is certainly a reasonably available inference.

72While H.D. had not been interested in seeing J.C. at the end of October 2014, he was insistent that changed later. It was put to him that once he had possession of the 51 second video, it gave him the power to have sex with H.D. on multiple occasions as a result of the threat that he had made to post it on the Internet. He said that was wrong and he denied that had ever been his intent. It was put to him that he wanted her to act like his girlfriend. He said that was incorrect – notwithstanding previously acknowledging the extent of his attraction to her, and his inability to stop texting her or to believe that their relationship had ended – preferring instead to regard it conveniently as a continuing relationship with hiatus periods.

73Close to the end of his examination, J.C. admitted that H.D. specifically asked him to delete the video at least once, after he had made a comment about her looking "cute" on camera. He said that comment brought up the subject of the video and that she asked him to delete it because she was in another relationship. Again, when pressed, J.C. disagreed that H.D. protested against the original video, and wanted it deleted. He said that it was consensual when it was made.

74J.C. concluded his cross-examination responding to questions from Crown counsel whether H.D. had protested having sex with him after the video had been made. He again said that was incorrect. He said, with some agitation, "I am telling you she consented, because I asked her every time".

75There were no questions asked in re-examination.

Analysis

76It was the defence’s position that J.C.’s evidence was credible and believable in all aspects, and that even if not, his evidence was adequate to raise a reasonable doubt with respect to the material elements of the offences required to be proven beyond a reasonable doubt. The defence’s position was that J.C. should be acquitted of all charges on either of the first two prongs of the test in R. v. W.(D.). Failing that, defence counsel argued that there was insufficient evidence to ground any conviction, based on the third prong of the W.(D.) test.

77In short, defence counsel contended that J.C.’s evidence was internally consistent and engaged all of the traditional “hallmarks” of credibility. Any inconsistencies were on insignificant matters that did not undermine his credibility, and thus should not have any impact on my evaluation of the material elements of the offences for which he is charged.

78J.C. was said to have acknowledged and been forthright about his imperfections, to have described his own behaviour as being less than satisfactory on an objective level and to himself, personally, but in defence counsel’s submission, not in respect of any activity which could give rise to a conviction for a criminal offence.

Counts One and Two:

79Count 1 on the indictment as amended details a sexual assault on H.D. between December 1, 2014 and January 22, 2015. Count two, as amended, relates to the making of the video.

80The foundation for those charges is that J.C.’s sexual activity with H.D., including the filming of the video, took place when she was incapable of consenting to the explicit sexual activity that was occurring at the time of the filming of the video. The external circumstances, including the video itself, do appear to depict a conscious consensual act between two parties, but the Crown’s position is that H.D. was incapable of forming the requisite consent due to incapacity by way of intoxication or from some other source.

81J.C. testified quite resolutely that sexual behaviour in all instances was informed by his request for consent at each progressive stage of the sexual encounters. Defence counsel contends there is no reason not to believe that, especially in respect of the first alleged assault.

82It was argued that H.D.’s evidence regarding intoxication is considerably suspect and not of sufficient value to be believed beyond a reasonable doubt. She did waver on the issue of whether or not J.C. could have drugged her or whether she was responsible for her own drinks. She was consuming marijuana and prescription medication, but she testified that her experience with those substances informed her belief that any dissociation, such as she claimed she experienced, was unrelated to those substances. She also specifically acknowledged that she did not know whether she was drinking before she went to J.C.’s apartment on January 22, 2015 but she did know that they smoked weed. On her evidence, the only beverage that she consumed while she was there was a glass of water that she herself took from the tap. However, she also said that when she started to black out, that the experience and the feeling were entirely different from what she had experienced in circumstances when she was impaired from alcohol and marijuana. She specifically said her disorientation was unrelated to those substances and she knows this because of her experience with those substances.

83The alleged incapacity disappeared about 20 minutes after she claimed she woke up and discovered she was only half dressed, but at that point, defence counsel observed that H.D. testified she had no difficulty dressing herself, walking to the street car, transferring to the subway and then a bus, and walking home. However, beyond the fact that the video in which she engages with J.C. runs for only 51 seconds, there was no evidence of how long she was actually at his apartment, and how long she was allegedly incapacitated.

84The defence position is that in the video itself she was clearly in control of her faculties on all of the externally available circumstances and that there was nothing in that video or in any of the evidence that would have given rise to an expectation that J.C. should have believed at any time that she was intoxicated to the point that she was deprived of the ability to consent to the activity depicted. She said she did not consume any other drugs that night. H.D. also testified that was not the way she normally appeared, but it is difficult to determine whether that is true, given that at the time she is seen in the video, she appears to be actively participating in sexual activity while J.C. films her.

85The only evidence of incapacity is H.D.’s testimony, but many of her answers to the questions she was asked were either inconsistent, both internally and with her prior statement, or answers in which she said she could not recall.

86However, relative to the reliability of her testimony regarding these initial events, I must also observe that H.D. testified that some of her memories of this event have come to her after the fact through “recovered memory”. She acknowledged in her evidence that her memory is inconsistent and has failed her in the past, as a result of prescription medication that she took for depression and anxiety, but also the ketamine she took, starting in February or March of 2015.

87I found J.C.’s evidence suspect that on each and every occasion when he and H.D. had sexual activity, that he very carefully put the question of consent to her, and in all instances only proceeded after he specifically requested consent “at each progressive stage of the sexual encounters”. Defence counsel contended there was no reason not to believe that, especially in respect of the first alleged assault. However, I did not believe J.C.’s evidence on that issue, and I found that declaration to be too perfect, too mechanical, too rehearsed, and too politically correct to be believed.

88J.C. wanted me to accept that at each and every stage of each and every sexual encounter, he continuously asked H.D. if he could go further, but this simply is not in accord with common sense and experience about how sexual encounters unfold. It seemed excessively rehearsed and staged, as he specifically turned to give this answer directly to me.

89Defence counsel said his position was unchallenged, but that is not entirely correct. Amongst the pieces of direct and circumstantial evidence relative to H.D.’s capacity to consent, there is her evidence of what her demeanour was, and that she did not normally look like she did in the video or speak in that seemingly slurred manner. There is her evidence, as well, that she had no intention of having sex with J.C. when she went over to his residence, and that there was no discussion about having sex before she started to get dizzy and blackout.

90There is also the evidence relating to H.D. no longer seeing J.C. from the end of October 2014, and her testimony that she did not want to have sex, or to have any relationship with J.C., anymore. He was making her feel uncomfortable; she had a new boyfriend, and she was not interested in him that way anymore. Further, it was her evidence that she went over to his residence after the end of the October 2014 split up only to talk about potentially getting some help and furthering her ambitions in the music industry.

91Also relevant is her evidence that J.C. told her, after he played the video for her, that no one would believe that she was not consenting because she did not say “no” in the video. Crown counsel argues that evidence, if accepted, suggests an awareness on J.C.’s part that he knew she was not consenting and that she was in fact in a position where she was not capable of consenting, despite what appears to be on the video that the activity could potentially be consensual.

92It was Crown counsel’s position that if I consider all of the circumstances, that is enough to prove beyond a reasonable doubt that H.D. was not capable of consenting to the sexual activity that occurred on January 22, 2015. In the Crown’s submission, it is not just a case of H.D. saying that she was not consenting, because someone who was having a blackout might still very well have consented.

93Turning to Count 2, I agree with defence counsel that this charge must fail. The language of the section makes plain that the recording must be made surreptitiously to satisfy the elements of the offence. Plainly, however, the video recording was not surreptitious. The complainant’s own evidence was that she was aware she was being videotaped, notwithstanding her claim that all of this sexual activity allegedly occurred while she was blacked out and incapacitated.

94Crown counsel sought to ground her argument in support of this charge in several appellate decisions, but those cases, in my view, were very different from the circumstances here. She acknowledged that the Code indicates that the recording has to be surreptitious, but claimed that the case law has given that word a more nuanced interpretation and that it means more than simply whether or not the camera itself was hidden. The Crown argued that case law shows that surreptitious can have a broader meaning than just a hidden camera. There appear to still be some live issues still with respect to this section. Indeed, she claimed it remains a live issue what the mens rea requirement is with respect to this offence, whether there is a requirement that the accused intends that the camera be, or that the video be, hidden, surreptitious, or just not observed.

95When I questioned Crown counsel on what evidence she would rely on to establish that the accused had an intention to make a surreptitious video, given H.D.’s and J.C.’s evidence, Crown counsel responded that she was not sure that there needed to be that intention, arguing the Court of Appeal had left that issue open. She referred to R. v. S.M. and more recently, the 2014 decision in R. v. M.E.N., where the issue was raised of whether or not there is specific mens rea required, but the Court of Appeal declined to decide the issue and found that on the facts of the case before it that there was that intent. However, in my view, that was a logical conclusion for the court to reach given the specific finding of the trial judge that the appellant intended that the complainant not be aware that she was being recorded.

96Crown counsel pressed on, referring to a line of cases where “surreptitious” has been expanded to mean not just a hidden camera, something physically stealthy or hidden, but circumstances where the complainant or the person being recorded is not aware, or is not in a position to be aware, that they are being recorded. For example, in R. v. Perkins, a conviction was upheld on appeal in circumstances where the appellant choked the complainant and had sexual intercourse with her while she was unconscious and then videotaped the activity while she continued to be unconscious. Then in R. v. J.R.P., Unreported, (January 13, 2012), 10701, (Ont. S.C.), a decision of this court, pictures taken of a sleeping complainant were found to meet the requirements of the voyeurism provision, but with no discussion about whether those circumstances met the definition of “surreptitiousness”.

97As it applies to this case, Crown counsel’s submission was that H.D. was in a position where she was incapable of forming consent because she was incapacitated. Accordingly, if I were to find that she was not capable of forming consent, where she was in a state that she could not meet the bare minimum definition of being able to form consent, then in the Crown’s submission, that would be an equivalent situation to being unconscious or being asleep, and not in the position to be consciously and actively aware of what was going on. However, Crown counsel conceded that the voyeurism count would fail if I did not find that H.D. was incapable of forming consent.

98Amongst the pieces of direct and circumstantial evidence relative to H.D.’s capacity to consent, there is her evidence of her demeanour, and that she did not normally look like she did in the video, or speak in that seemingly slurred manner. There is her evidence, as well, that she had no intention of having sex with J.C. when she went over to his residence, and that there was no discussion about having sex before she started to get dizzy and blackout.

99There is also the evidence relating to H.D. no longer seeing J.C. from the end of October 2014, and her testimony that she did not want to have sex, or to have any relationship with J.C., anymore. He was making her feel uncomfortable; she had a new boyfriend, and she wasn’t interested in him that way anymore. Further, it was her evidence that she went to meet him to talk about potentially getting some help and furthering her ambitions in the music industry. Also relevant is her evidence that J.C. told her, after he played the video, whether that was immediately after she claimed to regain consciousness, or within a couple days, that no one would believe that she was not consenting, because she did not say no in the video. Crown counsel argues that evidence, if accepted, suggests an awareness on J.C.’s part that he knew she was not consenting and that she was in a position where she was not capable of consenting, despite what appears to be on the video where it appears that the sexual activity could potentially be consensual. She says that is enough to prove beyond a reasonable doubt that H.D. was not capable of consenting to the sexual activity that occurred on January 22, 2015.

100However, notwithstanding those submissions, I am simply not sure whether there was an absence of consent or an absence of capacity relative to counts one and two. I do not reject the complainant’s evidence on this issue. I do not doubt the sincerity of her testimony, and as well, I do not specifically believe J.C.’s evidence relative to these events. But I find, given all of the evidence, that I cannot be certain beyond a reasonable doubt that H.D.’s sexual relations with J.C. on January 22, 2015 were not consensual.

101H.D. claims in her evidence that she blacked out and woke up later only half dressed and had no knowledge of what transpired during the period of her alleged incapacity, and that she did not consent, either to have sex with J.C. that night, or to permit him to videotape her. However, I am unable to reconcile and accept that particular evidence as reliable in the context of the evidence as a whole, and in particular, the appearance of active and willing participation in the sex acts depicted on the 51 second video recording.

102I do not accept or believe all of J.C.’s evidence, as I will discuss later in these reasons, but I do accept that his evidence on these two counts could reasonably be true. As such, whether it is on the basis of the second or the third test in W.(D.), combined with my finding that the statutory requirements have not been met to establish the voyeurism charge, J.C. will be acquitted on counts one and two.

Counts Three and Four

103Turning to the remaining two counts, they focus specifically on two questions:

(i) Did J.C. commit extortion against H.D. by threatening her that he would post the embarrassing video on the Internet if she did not have sex with him?

and

(ii) Was the sex between these parties that occurred between six and ten occasions after the January 22, 2015 event, consensual or non-consensual?

104Unlike counts one and two, I find that I am satisfied beyond a reasonable doubt relative to the extortion-related counts. This, having regard to the complainant’s evidence with respect to these other counts, which I believe and found to be entirely credible and reliable in the context of the evidence as a whole, unlike her evidence on counts one and two. That finding is also based significantly on the evidence of the defendant, J.C., having regard to all the circumstances.

105Looked at in its totality, I am satisfied beyond a reasonable doubt that once he was in possession of the compromising videotape, J.C. (i) did extort sexual favours from H.D. after the video was made, and (ii) H.D. did not consent to have sex with J.C. on those occasions following the making of the video. They occurred in circumstances of duress and power imbalance. I find that conclusion is the only reasonable inference that can be drawn from the circumstantial evidence, combined with H.D.’s evidence, which I accept, and J.C.’s evidence, which I largely reject on these two charges.

106The extortion is associated with the making of the video and a threat made immediately or shortly after the making of the video, or as recounted by H.D., a few days later. While J.C. has been acquitted on counts one and two, it does not follow that the remaining two counts must be dismissed. They must be looked at in the context of the period following January 22, 2015, but also taking into account the entirety of their relationship, including during the period that preceded January 22.

107Defence counsel argued that J.C.’s denial was absolute and sufficiently believable to meet the threshold in the first prong of W.(D.), and if not, at least the threshold in the second prong. J.C. said these events did not happen, although it was incorrectly claimed that his evidence was “unchallenged.” I do not agree that there was no crack in his evidence with respect to that count, when J.C. testified that he did, at one point, mention the video to H.D. in what he sought to characterize as an off-handed comment, not made in connection or in conjunction with any demand or other extortive activity on his part.

108J.C. testified that H.D. “looked cute on camera” in the compromising, plainly, and blatantly pornographic 51 second video, which I frankly found to be a statement more indicative of his mindset and disposition, but certainly not “cute” by any ordinary meaning of that word. He specifically acknowledged that she asked him to delete it. He admitted they had a further conversation where he countered with his desire to keep it for his own gratification. Defence counsel argues that was the end of the conversation and the end of the matter, but in my view, that is not borne out by the evidence, and it was not the end of the matter at all.

109Defence counsel argues there is no believable evidence that J.C. used that videotape to extort H.D. However, I reject that position based on J.C.’s own admitted refusal to delete the video when asked. Refusing to delete the video is an important consideration. This is not a situation like R. v. Lebenfish, for example, where an accused was acquitted of voyeurism in consideration of the fact that he agreed to delete photos of the complainant when she requested him to do so. Moreover, J.C.’s continued possession of the compromising video is the foundation of his power imbalance over H.D. – a person 9 years his junior – and of his ability to command sexual favours from her. This conclusion is reasonable bearing in mind that by his own admission, J.C. was not happy when H.D. ended the relationship with him. He wanted it to continue and, in my view, persistently pursued her in his text messages. The only reasonable inference in the context of the evidence as a whole is that the reason for the accused’s failure to delete the video when specifically and directly requested to do so by H.D. is directly connected with the Crown’s allegation of extortion.

110As noted, J.C. himself addressed that very issue in his evidence. He acknowledged that H.D. asked him to delete the video, but he claimed he explained to her why he wanted to keep it: because he had never “done this before” (that is, presumably, made a videotape of a woman masturbating, showing him her anus when commanded, and telling the audience that she loved his penis). He acknowledged that he had that video in his possession and control, under a disguised label in his friend P.Y.’s computer. It was plainly a compromising and embarrassing video of the complainant, but he said he liked it. He told her not only that he liked having it for his own satisfaction and gratification, but that he intended to continue to possess it. He acknowledged that he would not accede to her request when she explicitly said, “Delete it.” Indeed, he acknowledged before me in his evidence that he liked to view it, and did so on several occasions.

111Defence counsel contends that J.C.’s direct evidence offsets any requirement to draw an inference, but that even if that inference is available, it comes head-to-head with his direct evidence. However, I do not accept or believe his direct evidence, nor do I believe it could reasonably be true. I found it to be contrived, intended to try to cover for the fact that he never thought his possession of that video and the power it gave him over H.D. would come to light. It simply does not make sense in the context of the evidence as a whole, and it does not displace the inference that is raised by that evidence in totality.

112Defence counsel argues that H.D.’s evidence is insufficient to satisfy the third test of W.(D.), given the issues with respect to H.D.’s alleged credibility, and the alleged external circumstances of the activities described. However, I found H.D.’s evidence on these post-January 22, 2015 matters entirely credible, reliable and in accord with the circumstantial evidence.

113It was repeatedly said that J.C. always engaged in appropriate behaviour with respect to consent at all times, as a normal practice, but I did not believe this aspect of his evidence, or his evidence relating to the post-January 22, 2015 events. I find that his evidence about carefully staged and sequential inquiries into consent defies actual human behaviour, and is contrived. His evidence was challenged by the entirety of H.D.’s evidence on these matters, whether it related to post-January conduct in the first apartment at the entertainment district, or the second apartment off the Danforth. ⁹

114Counsel stated in argument that J.C. had to say things that were not pleasant about H.D., but took no opportunity to attack her, and that even when he referenced her promiscuity, “he did so respectfully.” However, given his own professed lifestyle that seemed on his evidence to involve having ongoing sexual relations with as many women at the same time as he could – his so called “polyamorous” lifestyle and beliefs – I found his reference to H.D. as being “promiscuous” was a bit of the “pot calling the kettle black.” It was unnecessary, demeaning and disrespectful.

115Defence counsel also claimed that H.D. had a motive to fabricate, which undermined her credibility. This claim was based on evidence that H.D. was in a relationship with another party off and on throughout the course of her interactions with J.C. In fact, there was a meeting with the other party when he and she and J.C. happened to go to the same sushi bar.

116H.D. acknowledged that her disclosure to her boyfriend was accidental, fueled by ketamine. In any event, she told the boyfriend, with whom she remains in a relationship to this day, on her own evidence, that she had been sexually assaulted. It is claimed that the boyfriend’s awareness that there was interaction between J.C. and H.D. gives rise to a motive to fabricate on H.D.’s part. It was defence counsel’s position that, looked at in retrospect, H.D. and J.C. did have an on-again off-again relationship, and since that overlapped her periods of relationship with the boyfriend, that she needed to fabricate this story in order to save that relationship with the other male.

117I do not accept that contention given H.D.’s firm rejection of a continuing relationship with J.C. following October 2014. She did not want to see him, much less have sex with him, anymore after that time. Regardless of whether the January 22, 2015 sexual interaction was consensual or not, the external evidence demonstrates a motive on J.C.’s part to keep the compromising video, not just to view it for his own gratification as a piece of third party pornography, but as a tool that permitted him to achieve a different objective: to continue to have a sexual relationship with H.D., whether she wanted it or not. J.C. knew that his possession of the video would cause her to continue to have sex with him, because she desperately feared that he would release it into the public domain to her embarrassment, and as H.D. said so tellingly in her evidence, he was “not the kind of person to not do what he threatened.”

118It is important on these two counts to note the statutory provisions relative to consent. The first part, s. (b), is the statutory codification of the common law principle that where a person is incapable of consenting to an activity, that vitiates consent. However, the important provision here is s. 2(c), which is not the foundation for counts 4 and 6, but rather the Crown’s alternative argument.

119In R. v. Stender, the Supreme Court of Canada squarely addressed the issue of consent to sexual activity where a person is coerced into having sex by threat. In that case, it was the dissemination of nude photographs, but it deals with essentially the same circumstances that are present here. In its decision affirming the Ontario Court of Appeal, the court found that such circumstances do not vitiate consent, because there was no consent to begin with within the meaning of s. 273.1.

120I accept H.D.’s evidence that she was not consenting. As such, there is no need to turn to whether the power used by J.C. vitiated consent under s. 273.1(2)(c). But, if there was a continuation of an exercise of power or authority or duress over H.D., or an inducement that resulted from an earlier occasion and that continued to be present throughout the transactions that took place between the parties, then that would necessarily vitiate the notion of voluntariness, and therefore, there could have been no consent.

121H.D.’s evidence was not that she said “no”, but that she protested on one or more occasions. However, on other occasions after January 22, 2015, she did not protest, effectively accepting that the sexual relations that J.C. wanted (but that she did not) were inevitable, whether she liked it or not, because they were necessary if she was to protect herself against the disclosure of the embarrassing and compromising video.

122However, H.D. was consistent throughout her evidence that after the relationship started with the new boyfriend in late October 2014, she always told J.C. that she never wanted to have sex with him. So, looked at subjectively, she was plainly not consenting. She was unwavering in her evidence that she never wanted to have sex with J.C. on any of the relevant occasions. It was not an activity that she wanted to participate in, and it is not something she would have done absent the extortion that was brought about by J.C.’s power position as the possessor of the embarrassing video recording.

123As a result, I find that H.D. never consented to any of the subsequent sexual acts that followed the making of the videotape on January 22, 2015, and I reject J.C.’s evidence that she did. However, it should specifically be noted that even if I found that she did have subjective consent, which I do not, but I accepted that that videotape was in existence and that the threat had been made to put it on the Internet, even then there would be no consent possible as a matter of law, because under s. 273.1(2)(c) of the Code, the power balance between them would have vitiated any possibility of consent.

124The law on the issue of extortion is clear and settled. In R. v. Davis, the Supreme Court confirmed that extortion can include extorting sexual favours. It’s not just a monetary or financial gain that must result.

125While I found H.D.’s evidence relating to the events preceding and on January 22, 2015 to be unreliable and insufficient to support those two charges, I had no similar concern about her evidence relating to the period that followed, relating to counts three and four as amended.

126Certainly, there were still some inconsistencies, but looked at contextually, she was never inconsistent with respect to the core allegations. The inconsistencies in H.D.’s evidence related mainly to timing and dates, and what happened at what point, but J.C. also had some difficulty with those matters, all of which is not surprising with respect to allegations that are three years old. Also given that there was no immediate reporting to the police, at the point in time where H.D. reported to the police on July 30, 2016, eight months had passed since the first incident. It is unrealistic to think, given her acknowledged memory issues, that she would remember everything in her initial statement to the police. On the other hand, the events underlying counts three and four were much more recent, and as such, in my view her evidence was more reliable.

127She was questioned about whether J.C. was going to get her a cleaning job. However, it was not put to her and she was not given an opportunity to respond to the allegations about that. That is important because I found troubling J.C.’s explanation of how events happened on January 22, 2015 (after H.D. had basically stopped communication with him because of a new relationship and her feeling that J.C. had been too persistent and wanted too much out of her). However, I have indicated that my uncertainty about those events necessarily requires me to acquit J.C. of counts one and two. Nevertheless, overall, I found J.C.’s evidence to be self-serving and designed to explain what I find inexplicable, at least as it relates to the latter two counts.

128I am entitled to look at H.D.’s evidence, determine that I accept it, and on that basis, find that J.C.’s evidence does not make sense and that it is not credible. R. v. J.J.R.D. Justice Doherty discusses extensively in J.J.R.D. what a trial judge must do with inconsistencies in a person’s evidence and the extent to which those inconsistencies may go to the ability to accept the evidence of the person. Importantly, however, he also states in J.J.R.D. that one reason for rejecting the evidence of an accused person is the acceptance of the evidence of a complainant.

129Somewhat similar is the recent Court of Appeal decision in R. v. R.A. In that case, in spite of the fact that the trial judge, Tausenfreund J., found that although the accused had testified in a straight-forward manner and was not shaken in his evidence, he nevertheless believed the evidence of the complainant. On that basis he rejected the accused’s evidence and entered a conviction. The Court of Appeal upheld that decision. At paras. 53-56, Huscroft J.A. writing for himself and Gillese J.A (Trotter J.A. dissenting) states as follows:

53 This was a credibility case, and at the end of the day the core of the complainant's allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant's evidence, and ultimately decided to accept her evidence in its entirety.

54 The trial judge's analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.

55 Although the trial judge's reasons are relatively brief, they are responsive to the live issues in the case and the parties' key arguments: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.), at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W. (D.) The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant's evidence, but nor did he reject it simply because he accepted the complainant's evidence.

56 The trial judge was entitled to reject the appellant's evidence "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence": R. v. D. (J.J.R.) (2006), 218 O.A.C. 37 (Ont. C.A.), at para. 53. That is what occurred in this case.

The Supreme Court affirmed R. v. R.A., 2018 SCC 13, 421 D.L.R. (4th) 98.

130This is partially such a case, apart from J.C.’s admissions which I found weighed against the credibility of his evidence, because in the same sense as in R.A., J.C. was not “shaken” during cross-examination. That requires this analysis to be more nuanced.

131J.C. did say some other things in this case which are, perhaps, again, not major inconsistencies, because there was no prior statement to compare it against in the way that the complainant’s evidence has been analyzed surgically, but as I have explained, there were also some things that did not make sense about his evidence. Regardless of the pre-January 22, 2015 events, I found that his evidence about what happened thereafter did demonstrate a pattern of callous disregard for H.D.’s wishes in an attempt to control her. This is the foundation of the extortion that is alleged after January 22, 2015, and of the sexual assaults it caused.

132Despite J.C.’s claims of having respected H.D., his conduct proved the contrary, and illuminates a relationship that was not founded on respect. The notion that he asked for her consent on every occasion and at every stage of their increasing intimacy, and ensured he had her full-fledged consent, does not jive with the external circumstances of his conduct. He persisted in contacting H.D. on at least three occasions after she had stopped contact with him in October 2014, where it was clear that she had told him that she did not want contact with him anymore because she had a new boyfriend. Nevertheless, after November or early December 2014, he continued to contact her, without response, up until the January 22, 2015 incident.

133On J.C.’s own evidence, these were periods of time where he persisted in pursuing her, in the face of her clear indication that she did not want to have contact with him any longer. Those evident facts, looked at from the post-January 22, 2015 perspective undermine his explanation for refusing to erase the video. He was enjoying a power and control relationship with H.D., where he alone could decide whether to honour her request and destroy the video, or instead continue to use it as a lever for his own self-gratification. This, knowing that she believed he would indeed post the video on the Internet, because as she testified, she was the only person compromised in that video.

134I found it surprising that, even with the benefit of hindsight, J.C. still referred to the relationship with H.D. as being an “on-going relationship” from the spring of 2014 to early summer of 2015. He plainly held that view in spite of his knowledge that she had wanted to end the relationship on several occasions. That, also, was evidence that was indicative of his unwillingness to accept what H.D. wanted.

135It was clear from his evidence and from H.D.’s evidence that J.C. wanted to have a romantic relationship with H.D. but that she did not want that. She was content to have a friends-with-benefits relationship for a time in the fall of 2014, but he wanted more. He plainly and, by his own admission, had strong feelings for her. So apart from the first two counts, which I have rejected because of the third test under W.(D.), once the video was made, H.D. was no longer in a position to reject his demands that she have sex with him. He used that to his advantage to further his goal of extending their relationship, and continually having sexual relations after she had told him she did not want it to continue.

136While I acknowledge there are some issues of timing in H.D.’s evidence, much of what she says about timing and sequence is actually corroborated by J.C.’s evidence, apart from what happened on January 22, 2015.

137Finally, relative to an alleged motive to fabricate, there is absolutely no evidence to support the existence of such a motive. The suggestion that the mere fact that H.D. has a boyfriend is founded on stereotypical assumption. It is stereotypical reasoning that is often applied to victims of sexual assaults. The argument is that since H.D. had a boyfriend, therefore, she fabricated this chronology in order to “get out of hot water” with him, as the Crown put it, and continue their relationship. However, there was no evidentiary basis to support that contention, despite H.D. having been cross-examined about it extensively. She explained that she told her boyfriend and he was upset about what happened to her and wanted her to go to the police. She told him about the relationship with J.C., albeit it while she was under the influence of ketamine. That actually adds to the veracity of her disclosure: it is simply not to believe that she fabricated this entire complex circumstance, while impaired under the influence of ketamine. As such, I find the alleged motive to fabricate to be completely speculative and illogical.

138H.D. denied that her boyfriend had been abusive to her or threatened her, or that they had an argument. There was nothing to contradict her evidence, and indeed, it was supported by J.C.’s evidence to an extent, because he talked about a time when he and H.D. were out together and they ran into this ex-boyfriend at a sushi restaurant. H.D. made no attempt to hide that she was with J.C. and she went over to talk to the ex-boyfriend, as he was at that time. There was no evidence that she was trying to make it seem like she was not with J.C. or trying to hide that.

139As such, even on his evidence, there is no support for the proposition that she was fabricating this story because of concern for her boyfriend’s reaction. J.C. agreed that the boyfriend did not contact him, threaten him, or confront him, so there is no evidence of a need to fabricate to appease the boyfriend. It also makes no sense that H.D. was sufficiently willing to fabricate that she would sit through a trial where she was cross-examined extensively about personal issues and again required to watch the explicit personal video, along with strangers – the participants in this trial.

140H.D.’s story is nuanced, complex and turns on a legal definition of consent. Her entire version of events that she suffered through this, felt shame for what had happened, did not want anyone to find out and was worried about the video going on the Internet, and with good reason, is entirely logical. There is no evidence of any reason for her to fabricate, or of any personal animus towards J.C. Indeed, while J.C. made the gratuitous comment about H.D. being promiscuous, she made no similar comments about him. She was fair and measured in giving her evidence, despite it being difficult and embarrassing to recount, and despite the presence of some difficulties with recalling specific dates and specific words that were used.

141I found H.D. to be a person trying her best to be a careful, precise and honest witness. During one line of questioning about her memory loss, she acknowledged that some of the medication she was taking could cause memory loss, but also acknowledged that depression could as well. She could not be certain what caused her memory loss, but, as a careful witness, she acknowledged she did have that memory loss. She thought about her answers to questions and I find she answered them truthfully and carefully.

142I accepted and believed her evidence, and did not believe J.C.’s evidence relative to counts three and four. As such, I am satisfied beyond a reasonable doubt that these two offences are made out to the criminal standard, so convictions will be entered on them.

Michael G. Quigley J.

Footnotes

1. 9There was a suggestion in the evidence that J.C. engaged in the extortion to induce for himself the benefit of sexual activity with H.D., but also that he induced her to have intercourse with one or more of his friends. However, counsel and I agreed that there was no basis on the indictment that any sexual activity with the friends, if it occurred, could give rise to a conviction, so it is not considered further.