Court File and Parties
COURT FILE NO.: 17-DV6309 DATE: 2019/05/03 COURT OF ONTARIO SUPERIOR COURT OF JUSTICE
RE: R. v. M.M. [1]
BEFORE: Mr. Justice C. MacLeod
COUNSEL: John Ramsey, for the Crown Sarah Starkie, for the Defendant
HEARD: April 28th, May 1st, 2nd and 3rd, 2019
FINDINGS OF FACT
[1] This is a “Gardiner Hearing” in relation to a charge of sexual assault causing bodily harm contrary to s. 272 (1) (c) of the Criminal Code of Canada. [2] This was “count 2” on the indictment to which the defendant pled guilty on March 28th, 2019. [3]
[2] The offence in question took place on December 1, 2016 at which time there was a sexual encounter between the complainant and the defendant during which the defendant intentionally inflicted bodily harm in the form of bruises and bite marks. Although the defendant contends that this took place in the context of a consensual “BDSM scene”, he pleads guilty because he now understands that consent is legally vitiated in these circumstances. Consent is not a legal defence to intentional infliction of bodily harm. [4]
[3] A trial remained necessary because the plea of guilt is simply an admission of the basic elements of the offence. That is that bodily harm was inflicted during a sexual encounter. The defendant does not admit the aggravating factors alleged by the Crown. In the Gardiner decision, the Supreme Court of Canada observed that during the sentencing phase of a trial, rules of evidence are relaxed. Nevertheless, the criminal standard continues to apply to contested facts:
“It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.” [5]
[4] As I heard evidence from both the complainant and the defendant, both counsel agree that the “W.D. framework” continues to apply notwithstanding that after a guilty plea, there is no longer a presumption of innocence. The Crown must prove all potentially aggravating factors, other than the admitted elements of the offence, beyond a reasonable doubt. [6] An agreed statement of facts was filed and marked as Exhibit 2. Other admissions were made by the defendant when he gave evidence.
Background facts and context
[5] I will briefly outline the circumstances in which the offence took place and certain of the events preceding and following it. This is necessary for context. It is not useful to set out all of the details.
[6] The evidence establishes that the complainant and the defendant met online through a website known as “FetLife” which purports to be a social networking platform similar to Facebook but designed for the BDSM, fetish and kink community. BDSM stands for Bondage, Dominance and Sado-Masochism. It is not disputed that the complainant had a profile indicating she might be interested in being a submissive and the defendant had a profile indicating he was interested in being dominant. At the time, the complainant was 19 years of age while the defendant was 27. He purported to be experienced in BDSM while she purported to be inexperienced but open to exploring it. Despite the nature of the web site, the complainant testified that she was really looking for a relationship whereas the defendant testified that he was only interested in what he termed a “play partner”. This is a euphemism for casual sexual encounters focusing on a particular fetish such as the use of sex toys to inflict and receive pain.
[7] After establishing contact online, the parties met several times for coffee and eventually agreed to a sexual encounter. There were perhaps two encounters leading up to the events on December 1st, 2016. The evidence diverges as to whether or not those encounters included BDSM and what was discussed or agreed. The defendant contends that the complainant was interested in exploring her response to pain, that they had two previous encounters involving minor BDSM and the parameters of the encounter on December 1st were carefully negotiated and explained with appropriate safeguards in place. The complainant on the other hand states that she was looking for a relationship and while not averse to exploring “BDSM play” was only open to doing so if she knew that the defendant was interested in being a reliable partner. She denies that December 1st was a carefully planned “scene”. “Scene” in this context refers to a planned fetish focused sexual encounter in which consent has been carefully negotiated and there are safeguards for the withdrawal of consent at any time.
[8] It is undisputed that on the night in question, the defendant came to the complainant’s apartment and they spent the night together. It is undisputed that the defendant brought MDMA (also known as “Molly” or ecstasy) and the complainant took some of it. During the evening when the parties were naked, the defendant repeatedly bit the complainant on the breasts and elsewhere on her body causing her pain and causing significant bruising to her breasts. The complainant states that this activity drew blood but this is denied by the defendant. The defendant also struck the complainant repeatedly on the thighs with a small heart shaped paddle. He also punched her and kneed her in those areas with the intention of causing pain and bruising. She suffered very significant bruising and bite marks on her breasts and large swollen bruises on the outside of her left thigh and inside of her right thigh. Though these bruises look severe in the photographs tendered in evidence, the defendant testified that these would not be considered extreme in the BDSM community.
[9] The complainant alleges that she never consented to the degree of violence or bodily harm which she experienced on December 1st and denies that this was part of a carefully scripted “scene”. She testified that the defendant initiated the violence without any preliminary discussion. She says that during the acts, she cried and begged the defendant to stop but she did not scream or try to flee the room because the defendant threatened her that if she did he would “really get mean”. She also alleges that after the beating, the defendant attempted non-consensual vaginal and oral penetration. The defendant admits to both felatio and intercourse but contends they were consensual.
[10] The parties did spend the night and the following day together. The complainant subsequently took pictures of the bruising and she posted some of those pictures to her FetLife page “tagging” the defendant as the author of the bruises.
[11] Two weeks later, the parties got together to go to the casino. The complainant asserts that she was pursuing a romantic relationship while the defendant asserts he had made it clear that he was only interested in BDSM encounters. On this occasion, however, the defendant persuaded the complainant that he was going to deposit funds into her bank account and deposited fraudulent forged cheques purportedly drawn on his mother’s bank account. He also enjoyed a meal with expensive wine and a night at the Hilton all paid for on the complainant’s credit card after he had induced her to increase her credit limit. The parties had agreed to get together for a second night at the hotel but the defendant never arrived and subsequently broke off all contact.
[12] It was when the complainant contacted the bank to deal with her overdraft, the bounced cheques and the credit card debt that she was referred to the police. When she was interviewed she told the police about the December 1st incident and was then referred to the sexual assault unit. While she did not include the non-consensual intercourse or felatio in her initial written statement, she included it in her subsequent statement and in her evidence at trial. She testified that it took her time to process what had happened and to come to terms with it. At first she viewed the matter as an assault rather than a sexual assault and even when she understood that violence in a sexual context was “sexual assault”, she did not want to see herself as a “rape victim.”
[13] Ultimately the defendant was charged with five offences including assault, sexual assault with a weapon, sexual assault causing bodily harm, fraud and robbery. For purposes of this decision, I am ignoring all but count 2 which is the offence to which the defendant has pleaded.
Analysis
[14] As I stated above, counsel agree on the application of the WD framework with some modifications. This means that I cannot simply weigh the evidence of the complainant against that of the defendant and decide what is more believable. If I find the evidence of the defendant to be persuasive, or sufficiently persuasive to generate a reasonable doubt about the existence of aggravating factors, then I would have to find that December 1st was an essentially consensual encounter vitiated only by the legal incapacity to consent to bodily harm. Even if I reject the evidence of the defendant, I still must evaluate the evidence of the complainant to ensure that it meets the criminal standard. In other words, it is not a case of one version of events or the other. The critical question is always whether or not the Crown has proven its allegations beyond a reasonable doubt.
[15] In assessing the evidence, it is important to avoid stereotypes and myths. In particular, of course, the common law and the Code prohibit inferences about consent or credibility being drawn from prior sexual activity. [7] In addition, the court cannot draw inferences about how a person who has suffered sexual assault or non-consensual sex should act or would act. Whether or not a complainant chooses to report an assault or the timing of that assault is not by itself a marker of credibility. [8]
[16] In this case, it is also important not to judge the question of consent based on stereotypical ideas of what constitutes normal or usual sexual activity. There are many sexual practices which other members of the public might consider bizarre, inexplicable or immoral but it would be wrong to assume that no one would willingly participate in such an activity or to reject the evidence of a witness simply because the evidence might seem shocking or surprising. That there are individuals interested in bondage or sado-masochism or other fetishes is amply demonstrated by the existence of the FetLife web site. Of course the law places some limits on sexual practices, one of which is the inability to consent to bodily harm. That said, it would be wrong to approach the question of consent with preconceptions. A finding of consent or lack of consent must be based on the evidence at trial or upon admitted facts.
[17] In criminal law, the Crown has the onus of proving lack of consent. While that onus does not apply to the issue of bodily harm, it does apply to the question of non-consensual penetration as an aggravating factor. Similarly, even if consent is legally impossible for intentional bodily harm, it will be an aggravating factor if the evidence shows that the complainant was protesting and asking the defendant to stop but he was undeterred.
[18] Breach of trust may be an aggravating factor. The complainant contends that she trusted the defendant only to engage in activities she was comfortable with when she actively agreed to submit to them. December 1st was a significant breach of trust which left her fearful of what might happen if she said no in future. I must consider whether the evidence supports that contention or supports the defendant’s version that everything was agreed in advance, that the complainant appeared to be enjoying the activities including the pain and she never asked him to stop.
[19] As I said above, a criminal case is not simply a contest of credibility between the complainant and the defendant. Nevertheless, on critical points where there are only two witnesses, the court must carefully scrutinize the competing evidence for indicia of the truth.
[20] I find overall that the evidence of the complainant is reliable and credible and aligns with the objective facts. Of course it is not perfect but she was generally unshaken in cross examination. I accept her evidence that notwithstanding the nature of the FetLife web site, she was looking for a relationship and while she had some curiosity about BDSM she was not fully committed to the idea. Simply being interested in the idea of being dominated cannot infer consent to all that took place on December 1st.
[21] I do not accept the evidence of the defendant that he and the complainant carefully and clinically mapped out December 1st as a “scene” or that he ensured she understood the use of safe words. In his evidence, the defendant stated that regardless of a safe word, he would have stopped if she had told him to. He demonstrated clearly that he now understands the importance of ongoing and active consent but this does not mean that he took those precautions or obtained that consent on December 1st. To the contrary, I accept the complainant’s evidence that she clearly and on more than one occasion told him to stop and he did not. I also disbelieve the evidence of the defendant that he does not remember if he took extasy on the night in question. The text messages show he was interested in MDMB and wanted them both to take it. I accept the complainant’s evidence that he showed her how to “parachute” the drug.
[22] The defendant admits vaginal and oral penetration with his penis during the night of December 1st. As this took place in the context of non-consensual sadism in which he had clearly been asked to stop, he could not have had a reasonable belief in consent. In any event, I accept the complainant’s evidence that she had specifically told him she was not ready for intercourse but he attempted to penetrate her anyway. I accept her evidence that the defendant attempted to force her to give him felatio while pinning her shoulders to the bed.
[23] The fact that the complainant was willing to continue the relationship after these events does not render her evidence incredible. To the contrary, it validates her evidence that she viewed the relationship as more than a “scene”. I accept her evidence that posting the pictures of bruises to her profile page was the defendant’s idea and she did it to please him. The defendant admits that he now has pictures of other bruised women on his profile page and this demonstrates that he has an interest in displaying his handiwork. I do not accept his evidence that the current pictures were on his original profile page and should have been apparent to the complainant before they met but even if they were and even if they were of interest to her, they do not infer consent to what took place on the night of December 1st.
[24] The subsequent text messages surrounding the events at the Casino show dishonesty on the part of the defendant but they also show heartless manipulation of the complainant by pretending to be romantically interested. I am not of course entitled to factor the fraudulent bouncing of cheques into the sentence for this offence or to presume that just because he committed a different offence, he must have done all that the Crown alleges. I am however entitled to examine those text messages and that behaviour in evaluating the credibility of the evidence relating to December 1st. The willingness of the defendant to defraud the complainant and his mother and to mislead the complainant simply for dinner and a night at the Hilton is consistent with a person who does not respect boundaries and will lie and manipulate for short term gratification. This is consistent with his behaviour on the night of December 1st.
[25] In summary, I reject the evidence of the defendant on the critical issues and I accept the evidence of the complainant. I find that on this evidence, the Crown has established several aggravating factors beyond a reasonable doubt.
Conclusions and Findings of Fact
[26] Based on the evidence, for the purpose of sentencing, I make the following findings of fact.
a. On December 1st, 2016 the complainant and the defendant went to bed together intending to have consensual sex. The complainant was open to some aspects of BDSM and was the owner of some sex toys including the paddle ultimately used by the defendant to beat her. b. The defendant had not obtained the consent of the complainant to any particular sex act, use of restraints or “impact play” nor had there been any agreement that the complainant would be dominated until she used a safe word. c. The defendant had established trust with the complainant. On December 1st he knew that she trusted him. She believed the accused was experienced in safe and consensual BDSM activity including the need for ongoing consent and verification. d. On the night in question, the defendant had acquired drugs before arriving at the complainant’s residence. Both he and the complainant had consumed extasy. He was a more experienced drug user. e. At no time did the complainant consent to be beaten or injured or to be bruised in the manner that occurred. In any event she told the defendant to stop and he did not. f. On December 1, the defendant gratified his need to inflict pain by engaging in extreme acts of biting the complainants breasts and inflicting severe and extreme bruising on her thighs through beating her, punching her and kneeing her. He ignored her protestations and pleas that he stop. He induced her not to scream or leave the room by threatening to make it worse. Finally he engaged in vaginal and oral penetration or attempted penetration without consent. g. Following this event, the defendant pretended to be interested in an ongoing relationship when he knew that was what the complainant was seeking but he had no real interest. He used the hope of the relationship to defraud her and then ceased contact with her. The hope of an ongoing relationship and the inexperience of the complainant is one of the reasons she did not at first report the December 1st incident.
[27] These are my findings of fact for purposes of the Gardiner Hearing. I understand there may be other facts counsel wish me to consider. I am told there may be requests for a pre-sentence report or other steps before I hear final submissions on sentence.
[28] I will hear any further requests in respect of pre-sentence orders and adjourn the matter for final submissions on sentence.
Mr. Justice C. MacLeod Date: May 3, 2019
Footnotes
[1] There is a publication ban in place prohibiting publication of any information that may identify the complainant or any witness in this proceeding pursuant to s. 486.4 of the Criminal Code of Canada.
[2] See R. v. Gardiner, [1982] 2 SCR 368
[3] A typographical error on the indictment referred to s. 272 (1) (b) but there is no question that the elements of the offence as charged, and the facts as admitted, constituted sexual assault causing bodily harm. The indictment was amended by the court pursuant to s. 601 of the Code.
[4] See R. v. Jobidon, [1991] 2 SCR 714 and R. v. Zhao, 2013 ONCA 293
[5] R. v. Gardiner, supra @ p. 213 - 214
[6] R. v. W. (D.), [1991] 1 S.C.R. 742
[7] S. 276 (1) of the Code