Court File and Parties

COURT FILE NO.: CR-1015-18 DATE: 2019-10-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.M. Accused

Counsel: Kaely Whillans, for the Crown Michael Venturi, for the Accused

HEARD: September 30, October 1 and 2, 2019

REASONS FOR JUDGMENT

Cornell, J.

Introduction

[1] The accused stands charged that he did commit a sexual assault on T.S. In accordance with the reasons that follow, I find the accused not guilty.

Background

[2] The parties were involved in a common law domestic relationship for approximately three years. They had purchased a house together. In late November of 2017, the complainant initiated a second separation with the result that the accused vacated their home.

[3] They complainant explained to the accused that she had initiated this separation as she wanted to “find herself”.

[4] The parties remained on good terms during the course of the separation and stayed in touch with each other on a daily basis.

[5] Although the parties exchanged gifts and spent time with each of the other’s family on Christmas of 2017, the accused had become suspicious that the complainant was involved with another man named Jordan.

[6] The accused drove by Jordan’s house in the early morning hours of December 26, 2017 and observed the complainant’s vehicle parked in Jordan’s driveway. He took a photograph of her vehicle. He sent a number of text messages and phone calls to the complainant, all of which went unanswered until the following morning.

[7] The accused’s birthday is December 27. Although initially the complainant was making plans to make dinner for the accused, that did not happen. Instead, the parties met at Tim Hortons, at which time the complainant advised the accused that their relationship was over.

[8] On December 31, 2017, T.S. was at home to make lunch and get prepared for New Year’s Eve. J.M. attended at their home. T.S. alleges that, after meeting with J.M. in his basement bedroom, she was sexually assaulted by J.M. J.M. acknowledges that sexual activity occurred but says that such sexual activity was consensual.

The Issue

[9] As both parties acknowledged the sexual activity that occurred, the sole issue for my consideration is whether T.S. consented to that activity.

Review of the Evidence

Evidence of T.S.

[10] After J.M. moved out of their home, he would stay over from time to time in the bedroom that he established in the basement. The parties remained friendly with each other to such an extent that they spent time together and they would text and phone each other on a daily basis. The parties went Christmas shopping together on December 23, 2017.

[11] The residence was being shared with K.S. and her two children. There was some tension between the parties as J.M. did not want K.S. and her children to live in the house. Eventually this issue was resolved because K.S. had made arrangements to obtain her own accommodation in February 2018.

[12] Things started to deteriorate when J.M. discovered that T.S. had spent the night at Jordan’s house on December 26, 2017. She denied that she had slept with Jordan and said that she had slept on the couch.

[13] When she awoke on the morning of December 26, she observed the numerous texts and phone calls that J.M. had made during the early hours that day. After she observed the photograph that J.M. had sent of her vehicle being parked overnight at Jordan’s, she became angry as she considered this to be an invasion of her privacy.

[14] When the parties met at Tim Hortons on December 27, T.S. said that she felt sorry for J.M. after she told him that the relationship was over.

[15] On December 31, 2017, she was in their home in the process of boiling water to make Kraft Dinner for lunch. J.M. had entered the home and gone to his basement bedroom. T.S. said that she went downstairs to J.M.’s bedroom to talk to him about what they would do with the house now that their relationship was over.

[16] She proceeded to lie on her side on his bed. J.M. said “This is your last chance to tell the truth”. She replied, “What about?” J.M. pulled out his cell phone and showed text messages between T.S. and Jordan where they both expressed their love for each other.

[17] According to T.S., J.M. then said, “If you can have sex with him, you can have sex with me”. She laughed in response.

[18] J.M. was wearing his work clothing. He proceeded to remove his shirt, get on the bed, and crawl close to her feet. T.S. recounted J.M. saying, “Is this rape?” She said she was confused by this question and responded, “No”. She asked him if he was recording the conversation.

[19] She was wearing stretchy jeans under her rolled up socks. She said that J.M. then pulled her jeans down a short distance and that she pulled them back up. J.M. proceeded to pull her jeans down to her ankles. She described that she was shocked by this and that she froze. She told him, “I don’t want to do this”. J.M. proceeded to perform oral sex on her for approximately ten minutes. T.S. told him once again, “I don’t want to do this”.

[20] The parties then proceeded to have sexual intercourse for approximately ten minutes. J.M. is alleged to have said, “We are making love”, to which T.S. responded, “No, you are hurting me”.

[21] T.S. recounted that during the sexual intercourse J.M. said, “Do you prefer Jordan over me?” T.S. responded “I dunno” as she said that she was confused. After J.M. ejaculated on her stomach, the parties lay there for a period of time until J.M. gave her a paper towel to clean up. J.M. is then alleged to have said “Now you know what it is like to be with a man”. In response, T.S. indicated that she got dressed, picked up the Cheese Nips that she had been snacking on, and went upstairs. At that point in time, she indicated that she spoke to K.S.

[22] J.M. had indicated that he was changing as he was to go snowmobiling with a friend. Shortly after the event, T.S. recounted that she saw and spoke to J.M. in the driveway where he was on his snow machine.

[23] Shortly after this, the parties engaged in the exchange of a series of text messages.

[24] After disclosing to K.S. and T.S.’s brother about the incident in question, it was decided that T.S. would arrange for the locks to be changed on their home. After the stores reopened on January 2, 2018, T.S. and her brother attended at the home for that purpose. A short period of time later, J.M. and his mother arrived on the scene to question why the locks were being changed. T.S. asserts that she said, “You raped me”, to which J.M. responded, “It is your word against mine”. As things were becoming heated, J.M. called the police who arrived a short time later. It was during the second week in January that T.S. decided to go to the police. She testified that there were things missing from the house including deer and beef meat that she believed had been taken by J.M., contrary to an agreement that they had reached that he would notify her if he was going to come to the house. She said that the situation was “dragging on, because it’s my house and his house”.

Evidence of J.M.

[25] J.M. agreed with most of the evidence that had been offered by T.S. He agreed that T.S. had initiated the separation because she “needed time”. He agreed that the parties remained in contact with each other each day because he understood that a future relationship was still possible. He acknowledged that the parties went Christmas shopping, that they exchanged Christmas gifts, and that they spent time together on Christmas day in the company of each family.

[26] He acknowledged that the parties had an emotional meeting at Tim Hortons on December 27, 2017, as T.S. maintained that she continued to need time to “find herself”.

[27] On December 31, 2017, J.M. was at their home working on an ATV vehicle. He was in his shop uniform. After he entered the home, he noticed T.S.’s phone, which was unlocked. He observed a conversation between T.S. and Jordan. He reviewed those messages in order to “get some answers and some clarity”. He used his phone to take screen shots of the messages between T.S. and Jordan where they expressed their love for each other. J.M. testified that, after reviewing those text messages, he “felt hurt”.

[28] Rather than immediately react, he said that he went to Canadian Tire as he “needed some time”.

[29] Upon his return to the home, he asked T.S. to come downstairs to his bedroom. J.M. agreed with the evidence of T.S. that she proceeded to lie upon his bed, at which time he said to her “Tell me the truth”. T.S. responded with a chuckle and said, “There’s nothing”. J.M. said that “I have proof, and this is your last time to tell me”. When T.S. did not respond, he showed the screen shots on his phone of the text messages between T.S. and Jordan. T.S. just continued to “chuckle” which, according to J.M., was something that she did when she was faced with an uncomfortable situation.

[30] J.M. then said that he started to change out of his work clothing as he had made arrangements to go snowmobiling. He said that there was nothing unusual about the fact that he changed in front of T.S. He had his back to her as he was undressing. Once his shirt and pants were off, J.M. alleges that T.S. said, “Nice butt” and “Turn around”. At that point in time, he was wearing his underwear. She proceeded to sit up and grab his penis. She pulled him down on the bed and the parties started to kiss. He proceeded to unbutton her jeans and pull them down. She lifted her hips up in order to assist. T.S.’s pants stayed on down around her ankles. After performing oral sex on T.S., the parties proceeded to have sexual intercourse.

[31] J.M. denied the evidence offered by T.S. about conversations that she alleges took place. He specifically denied that she ever said, “no” or “I don’t want to do this”. J.M. recounted that T.S. said, “Don’t ejaculate on my shirt”, with the result that he did so on her lower abdomen. J.M. said that both of them climaxed.

[32] After the parties cleaned up and got dressed, J.M. said that he told T.S., “Once a cheater, always a cheater” and “The apple does not fall far from the tree”. He said he received no response from T.S.

[33] J.M. then left the residence to go to “Tom’s” to get his snow machine.

[34] He does acknowledge that shortly after these events, the parties exchanged a series of text messages that will be detailed later.

[35] On January 2, 2018, after being alerted by his brother that the locks were being changed on their home, he attended at the premises in the company of his mother. He was angry that this was being done as his personal possessions were still in the residence.

[36] T.S.’s brother Jeff was in the process of changing the locks. An angry exchange occurred when Jeff is alleged to have said, “You pushed yourself on my sister”. As the situation was escalating, J.M. called the police to attend.

Analysis

Consent

[37] The meaning of consent in this context was considered by the Court of Appeal in R. v. G.F., 2019 ONCA 493, 146 O.R. (3d) 289, where the court stated:

[30] Subsection 273.1(1) of the Criminal Code, as it was at the relevant time, provides that consent means the voluntary agreement of the complainant to engage in the sexual activity in question. Subsections 273.1(2)(b) and (d) provide that no consent is obtained where the complainant is incapable of consenting to the activity or where the complainant expresses by words or conduct, a lack of agreement to engage in the activity. Subsection 273.1(3) provides that nothing in s. 273.1(2) shall be construed as limiting the circumstances in which no consent is obtained.

[38] Two very different versions of events have been presented. A careful consideration of all of the evidence is required. In undertaking this exercise, I am mindful of the fact that I can believe some, none, or all of the evidence that has been offered by a witness. I am also mindful that I am to be guided by the approach mandated by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

Assessment of Evidence

[39] A useful summary of the principles involved in the approach to be taken can be found in R. v. Williams, 2010 ONSC 184, where Hill J. stated as follows:

[56] A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.

[57] Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

[58] A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

Crown Theory

[40] It was the theory of the Crown that J.M. was so upset and angry after his suspicions had been confirmed with the discovery of the text messages between T.S. and Jordan that he chose to force himself upon T.S.

[41] Apart from the allegation of sexual assault, there is no objective evidence in support of this theory. T.S. did not report any physical injury. There was no suggestion that any of T.S.’s clothing had been ripped or damaged. There is no evidence that J.M. ever raised his voice at any point in time. There is no evidence that J.M. made threats towards T.S. or used vulgar or profane language at any point in time including the text messages that were exchanged by the parties shortly after the incident in question. The exchange, as detailed in Exhibit 3, is as follows:

J.M. What

T.S. I don’t wanna see your face

J.M. Then get out of the house I don’t know what more you want

T.S. Your disgusting

J.M. No you guys are disgusting

J.M. And why you made all of a sudden Mad

T.S. I can’t believe you did that I said no

J.M. Sorry

[42] When T.S. says “Your disgusting” he responds, “And why you [mad] all of a sudden”. If, as the Crown suggested, non-consensual sexual activity took place with an angry jilted partner, it would be obvious that T.S. was “mad” because she had just been sexually assaulted. It would have been unnecessary to ask T.S. why she was “mad”.

Prior Consistent Statements

[43] On the other hand, there are the texts from T.S. that said, “I can’t believe you did that” and “I said no”. It was acknowledged by Crown counsel that the text responses from T.S. are not to be considered for their truth as they constitute prior consistent statements. As such, the statements lack probative value and are considered to be self-serving: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272 at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 36. To rely upon such statements as evidence of the act would contravene the hearsay rule: see Dinardo.

[44] There was no effort by the Crown to permit T.S.’s prior consistent statements to be admitted pursuant to one of the exceptions where the prior consistent statement of a witness can be proved. The Crown did suggest, however, that such statements could be taken as evidence of T.S.’s emotional state shortly after the incident. I will now deal with the question of demeanour evidence.

Demeanour Evidence

[45] K.S. testified. She said that about 10 or 15 minutes after the alleged incident, she observed T.S. walk down the hallway. She said that T.S. was pale, upset, and crying. When J.M. came back a few minutes later on his snow machine, she said that T.S. appeared frightened. When the two of them went back to Jordan’s home to celebrate New Year’s Eve, K.S. said that T.S. was quiet, visibly upset, and not herself.

[46] Following the sexual activity, J.M. testified that after he and T.S. had cleaned up and gotten dressed, he told her “Once a cheater always a cheater” and “The apple does not fall far from the tree”. He said at that point the relationship was done and it was time to move on. Some background is required in order to understand the significance of those statements.

[47] In February of 2017, T.S. initiated a separation while she explored a relationship with Jordan. After about two weeks, the parties decided to reconcile. It was acknowledged by the parties that it would be necessary to rebuild trust in order for them to successfully move forward. T.S.’s mother had previously been in a similar situation. She and her husband had managed to work things out. T.S.’s mother shared this experience with J.M. to provide him with an example where the trust had been rebuilt and to provide him with hope that he and T.S. would be able to do this as well. The “once a cheater” and “apple” statements were made by J.M. to T.S. in reference to that prior episode.

[48] At this point, it is appropriate to once again address the text messages that were exchanged following the incident. At the conclusion of those text messages, J.M. states, “Sorry”. He testified that he said sorry, not for the sexual activity, but rather as an apology for the hurtful statements that he made to T.S. concerning her February 2017 liaison with Jordon.

[49] I now return to a consideration of the demeanour evidence. There is a line of cases that supports the proposition that evidence of the complainant’s demeanor is admissible in sexual assault cases. In R. v. Lindsay, 2005 24240 (ON SC), [2005] O.J. No. 2870 (Ont. S.C.), Fuerst J. summarized the relevant considerations underlying this proposition as follows:

[159] I agree that it can be dangerous to place weight on a witness’s demeanour when he or she testifies. It is well-established, however, that evidence of a complainant’s emotional state after an alleged offence may constitute circumstantial evidence confirming that the offence occurred, depending on the circumstances of the case, including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state.

[50] The upset displayed by T.S. following the incident is consistent with what might be expected following a sexual assault. On the other hand, it is equally possible that T.S.’s upset condition was due to J.M. confronting her with evidence that she was involved with Jordan, had been told by J.M. that their relationship was now over, and finally, she was faced with the characterization of her conduct and behaviour with J.M.’s parting comments, “Once a cheater, always a cheater” and “The apple does not fall far from the tree”. During cross-examination, T.S. did acknowledge that these comments had been made and that they referenced the incident involving her mother’s unfaithfulness.

[51] In this case, I am faced with these alternative explanations. This issue was addressed in R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, where the court stated:

[99] I am not satisfied by the trial judge’s reasons that he adequately directed himself on this issue, in particular relating to the existence of alternative explanations for the emotional state of the complainant. Where there are alternative explanations, some inculpatory and some not, and the precise explanation is not identified, the demeanour evidence is ambiguous. Such evidence is not relevant and should not be admitted without a proper foundation being established for its admissibility. Ambiguous demeanour evidence can be highly prejudicial and is of no probative value.

[52] It is my opinion that the demeanour evidence in this case is ambiguous as there are two possible explanations for it. Accordingly, it cannot be relied on as such evidence is “highly prejudicial and is of no probative value”.

[53] At the time that the sexual activity took place, T.S. was in the process of boiling water to make lunch. When she went downstairs, K.S. testified that she attended to the water that was boiling on the kitchen stove. During the course of the sexual activity, T.S.’s brother Jeff telephoned her. T.S. did not answer the telephone call from her brother. She did not call out to K.S. for assistance. This may be explained by T.S.’s evidence that she was so shocked by what was happening that she froze. The alternative explanation is that she did not answer her brother’s call or call out for help because the sex was consensual. The fact of the matter is that it is now well established in law that there is no particular way in which a person who is involved in or has suffered a sexual assault might react: see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. I am simply left with the fact that T.S.’s failure to answer the phone or call for assistance might well be explained by the shock of a sexual assault or it might be explained by consensual sexual activity. Once again, I am left with this ambiguity.

State of the Relationship

[54] This is not a case where the parties were completely estranged following the separation. I have already recounted the evidence that they remained close following the initiation of the separation and that J.M. held out hope that they would work things out. T.S. testified that following the separation, she “still cared for J.M.” After the meeting at Tim Hortons on December 27, 2017, T.S. said she, “felt sorry for him”. During cross-examination, T.S. admitted that even when confronted with evidence of her relationship with Jordan, she denied it so as not to hurt J.M. It is clear from this evidence that T.S. still had feelings for and cared about J.M. at the time in question.

Changing of the Locks

[55] I have made note of the fact that on January 2, 2018, T.S. and her brother Jeff attended at the home in order to change the locks. While that process was under way, J.M. and his mother came to the home. J.M. said that he was confused as to why the locks were being changed. Jeff made a statement to J.M. to the effect that “You pushed yourself on my sister”. Jeff was angry and things were escalating. T.S. testified that during this confrontation, she told J.M., “You raped me”, to which he responded, “It’s my word against yours”. J.M. denied that such an exchange took place. J.M.’s mother was present throughout and she testified that she never heard such statements being exchanged. I am faced with contradictory evidence on this point.

[56] Despite Jeff’s comments that J.M. had forced himself upon his sister, it was J.M. who called the police to attend while the locks were being changed.

The Home

[57] As has been pointed out, J.M. moved out of the shared home in November 2017 after T.S. initiated the separation. J.M. moved in with his parents. T.S. remained in possession of the home. It is clear that she wished to continue to do so. She made the unilateral decision to change the locks despite the fact that J.M.’s possessions were still in the home and he was a co-owner. At the time that the locks were being changed, J.M.’s mother was told by T.S. that she wanted to keep the house and that she had an appointment the following week with the bank to see about financial arrangements.

[58] T.S. did not go to the police until two weeks after the incident. She said that she had an understanding with J.M. that after the locks were changed, he would not attend at the home without prior notice to her. She said that she had reason to believe that J.M. was not abiding by this understanding when she noticed that deer meat and beef had been taken from the freezer, something that she assumed had by done by J.M. She said that after she discovered that the deer meat was missing, she decided to report the matter to the police.

[59] The doctrine of recent complaint about a sexual assault has not been followed for many years. In its place, the law now recognizes that there is no particular way that a person might respond to a sexual assault, as has been previously been pointed out. Delay in reporting a sexual assault is no longer a factor. In this case, the question arises whether T.S. went to the police because she was sexually assaulted or whether, according to her own evidence, she went to the police because J.M. was not abiding by their agreement to not attend at the home without prior notification and because she believed that he had taken deer meat and beef from the freezer.

Prior Statements

[60] On January 12, 2018, T.S. gave a statement to the police. During the course of cross-examination, she acknowledged that given the intervening 13 days since the incident, she had time to put her thoughts in order. She acknowledged that she knew the importance of giving a full rendition of events to the police with as much detail as possible. Although the police officer specifically asked T.S. about the January 2nd confrontation, T.S. did not tell the police that she confronted J.M. with the statement, “You raped me”. She never told the police that she just froze. In her statement to police, she told the police that she told J.M. that she did not trust him and that J.M. responded, “Is it because I don’t have a condom?” T.S. made no mention of this statement or reference to a condom during the course of her evidence given at trial.

[61] When questioned about her assertion that she did not trust J.M., T.S. testified that she was concerned that J.M. was filming their activity. She was so concerned about this that she raised it with J.M. at least two or three times. She said that she did this as she was concerned that a video might affect her relationship with Jordan.

[62] During her testimony at the preliminary hearing, T.S. testified that her pants came off. At trial, she initially said that her pants were down around her ankles at the time that the sexual activity occurred. Given the confusion about this evidence, I asked T.S. if she could clarify that for me, to which she responded that she could not be sure where her pants were at the time in question.

W.D. Analysis

[63] According to W.D., I must acquit if I accept the evidence of the accused. I am not prepared to do that. There is simply too much conflicting and ambiguous evidence to do so.

[64] Under the second step in W.D., I must find an accused not guilty if, after a careful consideration of all of the evidence, I am unable to decide whom to believe. In such a case, the Crown would have failed to prove the accused’s guilt beyond a reasonable doubt. That is the situation in which I find myself. Both the complainant and the accused testified and gave very different versions of the events in question. In cases such as this, the onus does not rest upon an accused to prove consent, the onus rests on the Crown to prove an absence of consent beyond a reasonable doubt. Given the conflicting and ambiguous evidence that has been put forward, the Crown has been unable to do that and has failed to discharge the heavy burden that it bears.

Conclusion

[65] Therefore, and in accordance with the reasons that have been provided, I find the accused not guilty.

The Honourable Mr. Justice R. Dan Cornell Released: October 31, 2019

COURT FILE NO.: CR-1015-18 DATE: 2019-10-31

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.M. Accused

REASONS FOR JUDGMENT

Cornell, J.

Released: October 31, 2019