ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
T. Jukes for the Crown
- and -
J.F.
N. McCartney for the Accused
Accused
HEARD: May 2 & 3, 2019
at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment
OVERVIEW
1The Accused and the Complainant were in a romantic relationship. They lived together for approximately 7 months before their relationship broke down irreparably in August of 2017.
2After separation the Complainant contacted the police. She alleged that during her relationship with the Accused, he engaged in non-consensual sexual activity with her as follows:
a) On April 23, 2017, while giving the Complainant a massage, the Accused is alleged to have touched her vagina over her clothes, without her consent; and
b) On June 28, 2017, the Complainant is alleged to have woken up at approximately 3 a.m. to the Accused having sexual intercourse with her. When she tried to get him to stop, he pushed her down and ejaculated in her hair.
3These two alleged incidents cause the Accused to stand charged with sexual assault contrary to s. 271 of the Criminal Code.
4The Accused adamantly denies the allegations. He acknowledges the massage and an occasion where he engaged in sexual intercourse with the Complainant in the middle of the night but denies any non-consensual sexual activity. He asserts that all sexual activity with the Complainant was consensual. He further asserts that on the occasions in question it was the Complainant who initiated the sexual contact.
5The Accused and the Complainant were the only witnesses in this matter. Each of them had differing versions of the events in question. Central to a disposition in this case is an assessment of credibility with respect to the issue of consent, in determining whether the Crown has proven its case beyond a reasonable doubt.
THE EVIDENCE
Background:
6The Accused and the Complainant had been high school acquaintances who reconnected in December of 2016 and shortly thereafter began a dating relationship.
7In February or March of 2017 the Accused moved into the Complainant’s home that she shared with her then two-year old son.
8It was common ground that the parties were both “intensely emotional” at times, that there were a number of arguments during the short relationship, and that these arguments easily escalated on occasion.
9On two separate occasions the conflict escalated to the point that police were called; once by the Complainant and once by the Accused as follows:
a) On June 25, 2017 the Complainant called the police during an argument with the Accused. She alleges they were fighting about various issues (lack of communication and finances), she became concerned that it was escalating, and wanted him to leave the home. The Complainant confirmed to police that there was no threats or violence in the relationship. The Accused ended up remaining in the home.
b) On August 10, 2017 the Accused called the police during an argument with the Complainant over the Complainant smoking while pregnant with his child. During the argument, which resulted in allegations by each of pushing and grabbing, the Accused physically removed the cigarette from the Complainant along with her package of cigarettes and the Complainant hit the Accused.
No charges arose out of either incident.
10The Accused left the Complainant’s home and the parties separated on August 11, 2017. Shortly thereafter the Accused suffered an emotional breakdown and admitted himself to the Thunder Bay Regional Health Sciences Centre adult mental health ward.
11On August 23, 2017 the Complainant contacted the police. The Complainant was subsequently interviewed and disclosed two incidents of alleged sexual assaults committed during the relationship. The Accused was charged on August 25, 2017.
April 23, 2017
12The first incident is alleged to have occurred on April 23, 2017. What is agreed is that there was a massage given in the afternoon, on the living room couch. It is agreed that the Complainant was wearing only her underwear, and that ultimately the Complainant became upset. This is where the agreement as to the facts surrounding the incident ends.
13The Complainant’s evidence is that it was mid-afternoon, she was tired, and the Accused offered to give her a back rub. She accepted his offer. After only approximately one minute, the back rub quickly escalated to the Accused “groping” the Complainant and touching her genitals. She asked him to stop but he did not. He called her a “whiner” and belittled her. This continued for a short time before the Complainant became upset and got up from the couch. It was only at this point that the Accused stopped. She tried to speak with the Accused about it at the time, but he ignored and dismissed her. She later texted him with her thoughts and feelings about the incident.
14The Accused testified that the Complainant came home the afternoon of April 23, 2017 with supplies for the massage, including some massage oil and a heart-shaped candle and asked him for a “sexy massage”. She proceeded to undress and lay on the couch. The Accused then massaged her entire body, back and front. He massaged her breasts without any concern by the Complainant that he had misconstrued her intentions. The massage went on for approximately 20 minutes. He concedes that when he began to touch her vagina over her underwear she suddenly became upset and said words to the effect of “I don’t want to do this right now”. He testified that he immediately stopped. He saw that she was crying, and he held her. She then got dressed, had a shower and then they watched a movie.
15At some point following the incident there was an exchange of messages between the Accused and the Complainant in which the problems in the relationship become evident. The conversation relates largely to the Complainant expressing her frustrations with the Accused giving her the “silent treatment”, belittling her and dismissing her “thoughts and opinions”, and the Accused expressing his frustrations that the Complainant fails to appreciate the positive things he does. The most relevant part of the conversation is:
Complainant:
That backrub? Great. I appretiated that..Until you started trying to have sex with me. [sic – typed as written]
and then gave no fucks that I was crying..and then got mad at me for not wanting to have sex with you..and then denied my feelings when I brought it up.
Accused:
Having sex used to make you happy. And I’m a person who enjoys sex and has needs and I don’t think I’m unreasonable or force you to do anything against your will.
June 28, 2017
16It is agreed there was a sexual encounter at approximately 3:00 a.m. during the night of June 28, 2017. The Accused and the Complainant disagree significantly as to what transpired during that encounter.
17The evidence of the Complainant is that she woke up at approximately 3:00 a.m. on her side. She was disoriented. The Accused rolled her on to her back, was on top of her and began to penetrate her vagina with his penis. Her pyjama pants had been pulled down and her t-shirt had been removed by the Accused before she awoke. She told him that she did not want to have sex. She asked him to stop, but he continued. The Accused told her to stop complaining and again, called her a “whiner”. He then tried to flip her on to her stomach, at which point she was able to get out from under him and get off the bed and on to the floor. She was crying inconsolably at this point and said “how could you?”. He pushed her down and ejaculated into her hair, telling her that he had needs. Following the incident, she continued to make comments, while still on the floor, such as “how could you” and tried to talk to the Accused about what had happened, but he refused. Upset, the Complainant went and sat outside by herself. Shortly thereafter she began to message the Accused. They slept separately that night.
18The evidence of the Accused was that he and the Complainant had been arguing that day. He went to bed early. He was awoken at approximately 3:00 a.m. when the Complainant came to bed. She got into bed with only a t-shirt on and she began to rub herself against him. They were laying in a “spooning” position, with the Complainant’s back to the Accused. They proceeded to have intercourse in the bed. During the intercourse he did notice that the Complainant’s engagement had diminished, and she was no longer “overly-enthusiastic”, but at no time did she say or do anything to signal to him that she wanted him to stop. After they finished having sex, the Complainant got up quickly and stormed out. The Accused was tired from having been woken up and confused as to what was happening. The Complainant began messaging him from outside. They messaged briefly, and he then went outside to speak with her directly. They talked about it, sorted it out, and then went back to bed together.
19The Accused maintains that the Complainant only became upset after the sexual activity had concluded. He further attests that he did not understand why she became so upset and what triggered her emotions. He states that she just kept saying that he was not attentive to her needs and she felt he was masturbating with her body; that he was using her for sex.
Post-Separation Events and Communication:
20Following separation there was communication between the Accused and the Complainant, most of which is reflected in the Facebook Messenger messages sent between them, and admitted as evidence in the trial.
21During this time the Complainant had been contacted by the Children’s Aid Society. She attests that the Society expressed concerns about the Accused being suicidal and living in the home with her son. She acknowledged in cross-examination that she was frustrated by this intrusion, by the Accused telling them he was still in the home, and that she thought the Accused was harassing her by involving the Society. The Accused denied having done so and alleges that their involvement was due to mandatory reporting by the police arising out of the August 10incident.
ANALYSIS AND THE LAW:
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
22The Accused is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty. This standard of proof is very stringent.
23In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada outlined the definitive guide for criminal trial courts in Canada with respect to reasonable doubt. At para. 39 of Lifchus, the court directed that even if one believes an accused is probably or likely guilty this is insufficient to establish guilt beyond a reasonable doubt and the accused must be acquitted. I cannot convict the Accused unless, based on the evidence before the court, I am sure that he committed the offence.
Reasonable Doubt and Sexual Assault Cases:
24As is often the case with sexual assault allegations the only witnesses in this case are the Accused and the Complainant. It is not enough for me to simply prefer the evidence of the Complainant to that of the Accused. Such an approach erodes the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: R. v. A.K., 2019 ONSC 5160 at para. 55.
25To assist in the application of the burden of proof in cases such as this, when there are competing versions of what happened, the Supreme Court of Canada provided the analysis to be followed in R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The analysis described at para. 28 of W.(D.) states:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
26In considering the evidence I may believe all, some or none of each witness’ evidence.
27Particularly with respect to steps 2 and 3 of the W.D. framework, I must consider the evidence of the Accused in the context of all of the evidence in the case, including the evidence of the Complainant. If, after considering all the evidence I am left in a state of uncertainty as to who I am to believe, then the presumption of innocence and burden of proof on the Crown requires me to acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152, at para. 11.
Position of the Defence:
28The Accused takes the position that the Crown has failed to meet the burden imposed on it to prove the elements of the offence beyond a reasonable doubt.
29The Accused contends that there is reasonable doubt as to whether these incidents were non-consensual. The Accused was clear in expressing his belief that the Complainant consented to the sexual activity in question. Having said this, if I find that there was no consent, the Accused takes the position that reasonable doubt is created with respect to the defence of honest but mistaken belief in communicated consent. In other words, that the Accused had a reasonable belief that there was consent.
30The Accused argues that in performing the first stage of the W.D. analysis, his evidence with respect to each incident should be accepted in its entirety, and he should be acquitted.
31If the evidence of the Accused is not accepted outright, and the Defence concedes that there may be a basis for rejecting some of the evidence of the Accused, the Defence takes the position that the evidence that I can accept at least raises a reasonable doubt. Therefore, the second stage of the W.D. analysis mandates an acquittal.
32In the further alternative, the Defendant submits that even if I am not left in a state of doubt by the evidence of the Accused, there are sufficient concerns with respect to the reliability of the Complainant’s evidence to create doubt and otherwise acquit the Accused at the third stage of the W.D. framework.
33Specifically, with respect to the evidence of the Complainant, defence counsel argues that her recollection of events has been significantly coloured and distorted by “intensely complex feelings” about the Accused that have a distinctly negative slant to them. Counsel argues that whether consciously or not, the intensity of the Complainant’s negative feelings towards the Accused have created an unreliable account of events; that she has experienced these two encounters with the Accused through the filter of intense negative emotions that she felt both at the time of the events and continues to feel, causing her to be inclined to think the worst of his conduct and to take a dim view of his motives.
34Defence counsel argues that the messages between the parties from the dates in question support this; that her persistent complaint was that his sexual engagement with her seemed to be only about his needs and that he was insensitive as to her needs.
35The Defence further argues that the telephone call made by the Accused to the police on August 10, 2017 set off a chain of events that left the Complainant both with the feeling and the motivation to make the complaints against the Accused. The Defence contends that in post-separation communications with the Accused, the Complainant became absorbed with establishing the accuracy of her version of events on August 10 and became increasingly aggravated by the Accused’s unwillingness to agree with her. She became even more invested in portraying herself as a victim when the police call resulted in a referral to the Children’s Aid Society and an interview between the Society and the Accused post-separation in which he is purported to have alleged he was still living in the Complainant’s home. The Accused was in the hospital at the time for suicidal ideations. To avoid the risk of further involvement with the Society the Complainant bent the truth, either consciously or subconsciously.
36Ultimately, while the Accused concedes that the Complainant was upset after both the April massage incident and the June 3:00 a.m. sexual encounter, the Defence submits that it was not because she felt she was the victim of sexual assaults, but that the Accused was insensitive to her.
37The Defence also contends that the Complainant had no issue with contacting the police when she felt she needed their involvement but did not report the incidents until it became in her best interests to do so.
Position of the Crown:
38The Crown portrays a much different picture; one of a controlling man that was dismissive of the Complainant’s needs and wants, and who elevated his own needs and wants. The Crown points to the August 10 smoking incident and the complaints of the Complainant, as reflected in the messages between the parties, as indicative of this. It is through this lens that the Crown argues I should view the evidence.
39With respect to the first stage of the W.D. analysis, the Crown takes the position that the evidence of the Accused is not credible and that the real focus in this case needs to be on the third stage of the analysis. Specifically, the Crown argues that:
a) The manner in which the Accused testified was consistent with that of a person attempting to deflect responsibility. The Accused attempted to give the answers he wanted regardless of the actual question, and often added detail that was irrelevant to what was being asked, but was intended to frame the answer in a way that coincided with his version of events;
b) The Accused acknowledged that the Complainant was upset on both occasions, but does not offer an explanation as to why she might be upset; and
c) The messages sent between the parties at the time are consistent with the Complainant’s version of events as opposed to that of the Accused.
40A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements: that the Accused committed the actus reus and that he had the necessary mens rea.
41The Crown argues that the elements of the offence have been made out beyond a reasonable doubt as follows:
a) The actus reus of touching of a sexual nature has been acknowledged by both the Accused and the Complainant. The element of touching without consent is what remains in dispute. The Complainant denies having consented and goes further to state that she made it clear, with respect to the first incident that she wanted the Accused to stop touching her, but he persisted until she physically removed herself from the situation. With respect to the second incident, she was sleeping and could not have consented.
b) With respect to mens rea, the evidence of the Accused himself supports that there was an intention to touch the Complainant in a sexual manner. As to whether the Accused was aware of, or willfully blind to the lack of consent, the Crown argues that the evidence of the Accused is not credible and that there is no reason to doubt the evidence of the Complainant. The Crown further argues that the evidence of the Complainant as to her mindset at the time of the incidents is supported by the messages between the parties at the time, whereas the Defence argument of animus on the part of the Complainant is not. The Crown urges me to adopt the Complainant’s evidence in its entirety.
42With respect to the Defence of honest but mistaken belief in consent, the Crown argues that there is no air of reality to the allegations of the Accused. While the Accused claims it was the Complainant who initiated the June 2017 sexual activity, he also claims that she was not “into it”. Furthermore, the Crown expresses concern with respect to the fact that the Accused did not attempt to have a conversation with the Complainant as to what may have been wrong. The Crown urges me to conclude that he did not ask this question because he knew there was no consent.
Analysis:
43The primary issue is whether the Crown has proven beyond a reasonable doubt the actus reus element of lack of consent, and if so, the mens rea element of whether the Accused knew of or was reckless of or willfully blind to, a lack of consent on the part of the Complainant.
44As the case law principles referred to above confirm, I must approach my analysis with the presumption that the Accused is innocent, and the Crown must establish his guilt beyond a reasonable doubt. I find that the Crown has not met the significant burden placed on it to establish guilt beyond a reasonable doubt. As the case law establishes, “probably” guilty or “likely” guilty is insufficient. While I have concerns with aspects of each party’s version of events, each version is plausible. While I may be inclined to simply prefer the evidence of the Complainant, the presumption of innocence and the burden placed on the Crown militate against this. In short, I cannot say with the degree of certainty required for proof beyond a reasonable doubt that the sexual activity on each occasion was non-consensual or that at the very least, the Accused did not have an honest but mistaken belief in communicated consent.
Stage 1 of W.D. – Do I Believe the Evidence of the Accused:
45I do not believe the evidence of the Accused in its entirety with respect to either incident. While I do not share the Crown’s concern with respect to the way the Accused answered questions on cross-examination, I am concerned that the Accused has downplayed his conduct that may have contributed to the upset of the Complainant on the two incidents in question.
46What is of primary concern to me is that the Accused acknowledged that on each occasion the activity ended with the Complainant crying. While he did offer a vague explanation as to why he thought she was upset in June of 2017, he offered no explanation at all as to what his understanding was of the Complainant’s upset during the massage in April of 2017.
47The evidence of the Accused is that when the Complainant became upset, he immediately stopped, held and consoled her. He denied having been upset and called her a “whiner” when she asked him to stop. There was no indication of any discussion as to why she may have been upset. Even with the Accused’s narrative that the Complainant was “hot and cold”, and the evidence of the Complainant’s belief that the Accused to be insensitive to her needs, it strikes me as unbelievable that he would not have at least inquired as to what caused her to suddenly feel this way and become so upset by conduct that he is alleged to have invited.
48The difficulty for the Crown is that I cannot say what conduct the Accused is attempting to downplay; whether it is becoming angry or frustrated when the Complainant did not wish to have sex during the massage, or whether it is that he refused to stop the unwanted touching as the Complainant alleges. Each are equally plausible.
Stage 2 & 3 of W.D.
49Despite not believing fully the Accused’s version of events with respect to each incident, when I consider his evidence in the context of all the other evidence, including that of the Complainant and the text messages filed, I cannot completely discount his version of events as a possibility and am left with reasonable doubt. The evidence and explanations of the Accused appear plausible and were unshaken in cross-examination.
April 23, 2017 massage:
50With respect to the massage, it is not unbelievable that in the context of a spousal relationship the Complainant may have asked for a “sexy” or intimate massage. It is difficult to know with any certainty what this meant to each party. However, even based on the Accused’s version of events the Complainant became immediately upset when he touched her vagina and therefore I cannot infer that the Complainant subjectively consented to this specific sexual act. The elements of Actus Reus are proven even under the Accused’s version of events.
51For the purpose of mens rea, the question then becomes whether the Accused knew of the lack of consent or whether there was an honest but mistaken belief in communicated consent when he touched the Complainant’s vagina. Based on the Accused’s version of events, I conclude that the invitation for a “sexy massage” would have made it reasonable for him to believe he had consent to touch the Complainant in a sexual manner. There is an air of reality to his claims. Based on his version of events he stopped as soon as she objected, and he became aware that there was no consent.
52My finding that the Accused’s version of events is plausible, and that there is an air of reality to his belief in communicated consent should not be taken to mean that I believe the Accused’s version of events over the Complainant’s; this is not the case. But with each version of events plausible, I am left in a state of uncertainty as to exactly what happened.
53The texts messages between the Accused and the Complainant after the event do not help resolve the issue. While they confirm that the Accused wanted sex during the encounter, the Complainant did not, she became upset and he became angry, there is nothing in those messages inconsistent with the Accused’s version of events other than perhaps a downplaying of his angry reaction when the Complainant indicated she did not want sex. Similarly, the messages are not inconsistent with the Complainant’s version of events.
June 28, 2019:
54With respect to June 28, 2019 I am left in a similar state of uncertainty as to exactly what happened between the parties that night, and therefore I find that the Crown has not proven beyond a reasonable doubt that there was no consent for the sexual activity that occurred that night.
55It is with respect to this event that I struggle to accept the entirety of either party’s evidence. With respect to the Accused, despite his claim that the Complainant initiated the sexual activity, he fails to explain what may have happened during the activity that caused her to become upset, disengage, and accuse him of simply using her for sex. Without any further explanation, his admission that she was concerned he was “using” her for sex appears inconsistent with her initiating the activity.
56With respect to the Complainant, her evidence was that she awoke to find her pants and her t-shirt already removed. I find it difficult to accept that a t-shirt could have been removed over the Complainant’s arms and head without her waking.
57More importantly, the text messages between the Accused and the Complainant sent at 3:26 a.m. on June 28 suggest that initially there may have been consent for sex, and that the Complainant simply did not wake to the Accused having non-consensual intercourse with her. The messages read:
Complainant:
you just seemed like you didn’t want to have sex anymore, and I was blue balled so I just wanted to orgasm’….you said that. So, if you acknowledge it was clear ai didnt
want to have sex anymore, in what realm is your orgasm a priority over my wellbeinga.
If you can r cognizant I didn’t want to have sex anymore, which you admitted, doing anything sexual past that is inappropriate. I was crying.
You need to be aware of me enough to know that I’m crying, and then secondly give a fuck. Check in, see that I’m ok. basic kink shit.
Accused:
Come inside dude, I was confused and half awake and shit. I’m sorry. Didn’t realize that you were upset.
[sic – typed as written by the Complainant and the Accused]
58The statement that she did not want to have sex “anymore” is consistent with the explanation of the Accused that the sexual activity was consensual, at least initially, but then the Complainant disengaged and was just “going through the motions”. The Accused remained insistent that while the Complainant was not overly engaged, at no time did she communicate through her thoughts or actions that he was to stop.
59The Complainant goes further than this in the text messages on June 28 to suggest that once she disengaged and started crying, the Accused should have known that he was to stop. The Accused denies in the text message, and in his evidence, any knowledge that the Complainant was crying until after they had finished having sex. Again, even if the Complainant’s actions could be construed as having subjectively withdrawn consent for the purpose of the actus reus, the Accused’s evidence raises doubt as to the mens rea element of a lack of consent.
60I do continue to remain troubled as to the real reason why the Complainant became so upset during the sexual activity; why she felt the Accused was insensitive or using her body for sex. I am also troubled by the Accused’s admission that he apologized on the night of June 28 for “violating her consent”. The explanation of the Complainant that the Accused failed to stop sexual activity when asked is a logical explanation. Having said this, based on the totality of the evidence I cannot completely discount the Accused’s explanation that in the context of a volatile relationship that was beginning to breakdown, the Complainant became heavily invested in her feelings that the Accused was insensitive to her needs and disregarded her views. While he apologized, he also testified that he attempted to reassure her that he had no idea that she did not continue to want sex.
61I am also troubled by the text messages sent between the parties in the days between separation and the Complainant’s interview with police in which the Complainant alleges having been woken to sexual advances on various occasions, having been pushed down during sex and other conduct she indicates she did not consent to. This evidence was adduced by the Crown and not the Defence. The Complainant refers to “multiple occasions” of being sexually assaulted by the Accused, the “last time we had sex” and the “3 times before that”. She refers to having cried about not being into certain sexual preferences of the Accused. However, there is nothing in these messages that proves that the parties were discussing incidents occurring during the period covered by the indictment. These messages were also sent post-separation, during an emotionally volatile time for the Accused and the Complainant. Despite being troubled by the allegations in those messages, they do not displace my doubt in the guilt of the Accused.
62On a final note, I did not accept the Defence suggestion that the timing of the police report, particularly given the previous opportunities with police involvement that the Complainant could have made the allegations, was indicative of an ulterior motive for the allegations. Similarly, I did not accept the Crown suggestion that the August 10 incident was indicative of the Accused’s lack of respect for the Complainant’s wishes with respect to her body. The parties had been arguing that day and the situation quickly became extremely heated on the part of each of them.
63For the foregoing reasons, the Accused is found not-guilty of the allegations of sexual assault contrary to s. 271 of the Criminal Code, and acquitted of the charge on the indictment.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: September 17, 2019
COURT FILE NO.: CR-18-0054-000
DATE: 2019-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
J.F.
Accused
REASONS FOR JUDGMENT
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Nieckarz J.
Released: September 17, 2019