minicounsel

COURT FILE NO.: 19-03

DATE: 20191118

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.B.

Defendant

A. Simard, for the Crown

W. Wade, for the Defendant

HEARD: September 10, 11, 12, 2019

Desormeau, j.

Introduction

1N.R. and S.B. have been in a relationship since early summer of 2016. The relationship has been on and off since it started, smattered throughout with highs and lows. At one particularly low point, during a period when the parties were quarrelling, an incident arose, resulting in the allegation that S.B. sexually assaulted N.R. During the investigation, further allegations of an assault and uttering threats by S.B. toward N.R. came to light, which are denied by S.B. Regarding the allegation of sexual assault, the issue is that of consent.

2After hearing the evidence, the crown invites the court to dismiss the charge of forcible confinement. The court agrees and therefore the charge of 279(2) of the Criminal Code of Canada (C.C.C.), unlawful confinement, is hereby dismissed.

3Admissions made by defence include date, time, jurisdiction, identification, voluntariness of the statements by the defendant to the police, the photographs taken in connection with the investigation, and the biological record.

4I have analyzed the criminal offences separately and divided the allegation of sexual assault by actus reus and mens rea. All the issues which necessitate findings of credibility are within the analysis.

Overview of the evidence

5Despite the criminal charges, N.R. continues to be in a relationship with S.B. N.R.’s evidence is that at the beginning of the relationship, S.B. was there for her when she had health problems. N.R. loves S.B., but believes he needs help for his issues with alcohol. When S.B. drinks too much, or has hard liquor, he becomes a different person. N.R. also drinks alcohol, something she did not do prior to her relationship with S.B. She admittedly smokes marijuana daily, and has since she was 13 years old, including after consuming alcohol with S.B.

6Within about a week of them dating, N.R. starts to reside with S.B. in Morrisburg. However, whenever they argue, N.R. goes to live at her parents’ home in Cornwall. During their arguments, her personal items remain at S.B.’s house. She has been involved with S.B.’s children, who visit him on Wednesdays and every second week-end.

7Both N.R. and S.B. agree that on or about the Friday prior to the alleged sexual assault of June 6, 2018, they quarrel, which results in N.R. spending the week-end at her parents’ home.

8Both parties agree that N.R. has an appointment to see an allergist in Ottawa on June 5th, 2018. S.B. is to take N.R. to the appointment. N.R. arrives at S.B.’s home that morning to find him not yet ready to go, which angers her. While he showers and gets ready, N.R. finds a voicemail message on S.B.’s cellular telephone from another girl. N.R. accuses S.B. of infidelity, which he denies. As a result of the message and the argument, N.R. is angry, throws S.B.’s keys at the house, and leaves for her allergist appointment alone. S.B. tries throughout the day to reach N.R. Later in the day, after arranging for same, N.R. attends S.B.’s home to pick up her tires. According to N.R., S.B. is in his back yard, talking to her through the back gate, and the tires are left out front for her to retrieve. According to S.B., he spends the day drinking some beer and having a few shots of sambuca. N.R. sleeps at her parents’ home that night.

9The next day, June 6th, 2018, at around 6:30 a.m., N.R. receives a telephone call from S.B., asking her to come over to his home. S.B. sounds normal, so N.R. agrees. After dressing for work, she leaves her parents’ home at approximately 8:00 a.m. Morrisburg is on her way to her work in Winchester, where she is scheduled to start at 10:00 a.m. On her way to S.B.’s home, the parties continue to talk on the phone. When N.R. approaches the Morrisburg off-ramp, S.B. asks her where she is. She tells him she is almost at his home. He says something to the effect of “oh yeah, ha ha”. N.R. finds this comment disturbing. S.B. meanwhile says he is trying to be funny.

10N.R. arrives at S.B.’s home sometime between 8:20 a.m. and 8:35 a.m., and has a gut feeling that she should not have gone to his home. She feels like something is wrong and is worried about S.B.’s drinking from the day prior. Still on the phone, she asks S.B. to talk outside. He instead tells her to come in and waives her in through the front window.

11At this point, both N.R. and S.B.’s account of events differs and thus the remainder of their evidence is set out based on the allegations with which they relate.

12Prior to addressing the allegations, I note that in assessing all the evidence, the court must examine both the credibility of each witness and the reliability of their evidence.

13I am instructed by the test set out by the Supreme Court of Canada in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R 742 regarding weighing the evidence of the accused and that of the crown:

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.

14A criminal trial is not a credibility contest. Cases are not decided on which evidence is preferred, but whether based on the evidence as a whole, the crown is able to prove the guilt of the accused, beyond a reasonable doubt, on each alleged offence.

15The court may accept some, all, or none of the evidence of any witness. In making findings of fact, I must apply the standard of proof beyond a reasonable doubt. A fact will not be found against the accused unless I am satisfied beyond a reasonable doubt of its existence.

16The starting point is that the accused is presumed to be innocent, unless and until the crown proves his guilt beyond a reasonable doubt. “Reasonable doubt is doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 30.

17It is not enough to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof beyond a reasonable doubt. While the crown need not prove the offence to a standard of absolute certainty, if the court is not sure that the accused committed an offence, then he should be found not guilty.

18Credibility determinations must be made on the beyond a reasonable doubt standard.

19In assessing credibility of any witness, including the accused, the existence of evidence which contradicts the witness is obviously highly relevant: R. v. Jaura, [2006] O.J. No. 4157, at para. 13. Every witnesses’ credibility and evidence must be considered in the context of the evidence as a whole: R. v. Jaura, ibid.

Issue #1: Has the actus reus for the sexual assault been proven by the crown beyond a reasonable doubt?

20 Section 271 C.C.C. requires the crown to prove beyond a reasonable doubt, that the accused touches the complainant in a sexual manner, directly or indirectly, without the complainant’s consent. Both the actus reus and the mens rea of the offence needs to be proven beyond a reasonable doubt.

21The actus reus of the offence is committed if the accused touches the complainant in a sexual way without her consent: R. v. A.(J.), 2011 SCC 28, [2011] S.C.J. No. 28 (S.C.C.)at para. 23. The touching and sexual nature of the touching are objective elements of the offence, while the absence of consent is subjective. (See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26)

22The mens rea of the offence, or required mental state, consists of the “intention to touch and knowing of, or being reckless or willfully blind to, a lack of consent on the part of the person touched”: Ewanchuk, at para. 42.

23The Criminal Code of Canada at sections 273.1 and 273.2 address the meaning of consent.

24R. v. Barton is the leading Supreme Court of Canada decision on the issue of consent. Though the Supreme Court released its decision on May 24, 2019, and the offences in this case allegedly occur between May and June 2018, the Supreme Court does not prospectively change the applicable test but clarifies the principles enunciated in decisions predating Barton. For instance, on the issue of consent, the court states:

It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (A.(J.), at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (A.(J.), at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); A.(J.), at paras. 40 and 43). Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346 (S.C.C.), at paras. 55 and 57 (emphasis deleted)): R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, para. 88.

25Consent at the actus reus stage is actual subjective consent in the mind of the complainant, at the time of the sexual activity. To be more precise, “[t]he absence of consent… is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred [emphasis added in R. v. A.(J.)]: Ewanchuk, A.(J.), at paras. 23, 37, 45. The accused’s perception of the complainant’s state of mind is irrelevant: Barton, at para. 89.

26It is important to note that there is no requirement on the complainant to express her lack of consent, or to express a revocation of consent for the actus reus to be established: A.(J.), at para. 37.

27The complainant’s testimony is the only direct source evidence as to her state of mind, but her credibility must be assessed considering all the evidence at trial, including any ambiguous or contradictory conduct of the complainant. (See Ewanchuk, paras. 30 and 61)

The Evidence

N.R.’s evidence

The Evidence

28On June 6, 2018 after being waived in, and despite her hesitation, N.R. knocks on S.B.’s door, then enters the house. She notices a strong smell of alcohol inside, like beer and “hard stuff”. She asks if she should remove her boots. S.B. says no. She goes up the stairs to where S.B. is standing, and notices barbies on the kitchen table and a few beers on the kitchen counter. N.R. has not consumed alcohol or marijuana prior to attending S.B.’s home.

29S.B. asks N.R. for a hug, to which she says no. S.B. takes her arms from her side and puts her hands on his shoulders, then proceeds to hug her.

30N.R. notes that S.B. smells of alcohol. According to N.R., S.B. then tells her he wants to show her what he has done all week, so he guides her, walking backward to the bedroom. N.R. believes S.B. has packed up her belongings, and that he probably wants to have sex.

31When N.R. arrives in the bedroom, she sits down on the bed with S.B. facing her, his knees around hers. S.B. gets on top of N.R., starts kissing her and nibbles on her ears. She testifies that he pushes her with both his hands to lay back on the bed so that her head is touching the bed while he kisses her. She indicates that S.B. pretty much wants to have sex, but he does not say anything. She says to him “really S., this is what you want to do?” S.B. does not respond. She tells him that if he wants to have sex, he is going to have to remove her clothing. As he continues to kiss her, she does not respond, she just lets him “do what he needs to do”. She testifies that it is easier that way, there is less fighting. He kisses her neck and touches her breasts. Her evidence is that her hands are at her sides while she looks at the ceiling. She does not touch him at all and does not kiss him. He then takes off her boots, her pants and underwear. She lets him do whatever he wants, she does nothing. She again says to S.B. “really, S., this is what you want to do, after all this time?” Her evidence is that she lets him do what he wants to do as she must get to work and wants to get out of there. S.B. directs her to take off her bra, which she does, but he insists she leave her shirt on. At one point, he takes off his own clothing.

32S.B. then kisses her ear, mouth and then breasts. He then goes down on her. Her feet are still on the floor. He gives her oral sex. She does not respond to the oral sex and does not moan. S.B. then directs her to go onto her hands and knees, on all fours, doggy style. Her evidence is that she says no, but then he helps her get to the position, and she complies. He puts his penis into her vagina, but his penis is not hard. Because she was not wet, he goes down on her again, while she maintains the doggy position. He again inserts his penis into her vagina. He has a semi hard-on and proceeds to spank her ass. She tells him to stop, that he is hurting her. He does not stop.

33S.B. is upset, mad that he does not achieve a full erection. Next, she describes S.B. puts his left arm around her neck, in a choking fashion, while still in doggy position. She does not recall if his penis is inside her at this point in time. She testifies that she has her keys in her right hand and there is no way he is getting them from her, which he likes to do. She would then have no way to leave or to get home. She testifies that she is crying, telling him to stop. She is scared. He does not stop. In her mind, if he stops, she could go to work.

34At one point during the incident, S.B. takes out a pair of handcuffs from the bedside table. She does not recall if this occurs before or after the choking described above. She does not see the handcuffs, but she hears them. She describes the handcuffs. He brings her left hand backward, toward him, to place the handcuff on her. She resists. Her keys are still in her right hand. She is crying and wants him to stop. She tells him to stop because it is hurting her. He thinks this is funny. She says he thinks everything is funny.

35They then go into another position. There is a struggle. He wraps his legs around hers. They are facing the headboard. She tells him to stop. She punches him in the back of the head and pulls some of his fingers back. S.B. then puts his full hand, possibly both hands, on her throat. She tries to get out of there, she just wants to leave. N.R. tells S.B. she just wants to go home. She promises she would not say “nothing”. She just wants to get to work. She just started a new job, has had health issues, and just wants to go to work. She recalls telling him this either during the struggle, or on the way out.

36After the struggle, S.B.’s whole demeanor changes. He tells N.R. she could have left any time she wanted. He looks at the clock as he stands and tells her she had better get ready for work. She grabs her clothing, gets dressed at the front door of the house, and goes to her car. He meanwhile yells something at her, though she is not sure what he yells. As she leaves to go to work, she calls her mother and tells her she was just raped. Her mother curses and tells her to go to the police and to report the incident.

37N.R. goes directly to the police station, which is two or three minutes away from S.B.’s house. In her evidence, N.R. does not recall if she calls 911. She remembers calling her work and having to pick up a phone at the police station to communicate with the police. She remembers the ambulance coming due to her being assaulted and being brought to the Cornwall Community Hospital. N.R. has bruises on her arm, a finger, and a red mark on her lower back. The bruises and red mark are photographed by the police at the Long Sault detachment at approximately 4:00 p.m. that same day. The leg bruises appear on her body a few days later and are photographed at her parent’s home by the police, approximately three days after the incident. The photographs are Exhibits 12 and 13 at trial. According to N.R., the bruising on her arm is as a result of the struggle with S.B. while in doggy position. The bruising on her finger is likely due to her keys when S.B. tried to take them away from her. The red mark on her lower back is as a result of the struggle with S.B. N.R. denies have this bruising prior to the incident with S.B.

38A few days following the incident, N.R. goes to S.B.’s home to pick up her belongings. She does not think he is home as the house is dark. She gets the keys and enters the home. He is in fact home, and as a result, she is charged with trespassing.

39In cross examination, N.R. agrees that the smell of alcohol is not an unfamiliar smell in S.B.’s home. However, it is usually not as bad as the day of the sexual assault. She did not see S.B. consume alcohol that day. When asked about last time they were together, she tells defence counsel she and S.B. were together the day before she testifies, September 9, 2019.

40When asked why N.R. checks S.B.’s telephone on June 5, 2018, she responds “because S.B. likes to lie, he’s a sneak. So, I checked his phone, just like he checks my phone every day”. Regarding the voicemail message left on S.B.’s telephone, S.B. tells N.R. the name of the caller. N.R. admits to messaging the caller through messenger. She admits she was angry about the voicemail, but not angry enough to make up the allegations. She admits to being angry about S.B. not being ready to go to the allergist with her, as she did not want to be late or miss the appointment – which would have cost her money. N.R. denies still being angry at S.B. when she drives to see him the morning of June 6th, 2018.

41N.R. agrees that upon arrival at S.B.’s home on June 6th, 2018 and noticing he looks bad, she could have left. However, she adds, she did not know what he was going to do. Had she known, she would have left. N.R. maintains that she usually knocks before going into S.B.’s home.

42She admits that when she is sitting on the bed in the bedroom, she just let S.B. do what he is doing. But when defence counsel suggests she could have gotten up and left, she testifies that had she tried to get up and leave, “I guarantee you it would not have been easy”.

43She agrees that when there is an argument, she goes to her parents’ house, but she and S.B. make up afterward. She agrees she told S.B. that if he wants her clothes off, “you take them off”. She then tells S.B. “Really, S. this is what you want to do”, to which he says “yes”. She agrees she does not object at that point, but indicates that “if you argue with S.B., it becomes an argument”.

44N.R. admits that S.B.’s drinking comes up often as an issue between them. It is what she calls the main problem in their relationship. He drinks every day, but she is only able to smell the alcohol when he consumes a lot. She indicates S.B. could stop drinking if he wanted to and has once stopped drinking for a month for her. N.R. indicates S.B. drinks one beer or so when he has his children in his care but consumes more after they go to bed. When she drinks, she drinks vodka. When asked if it was her idea to break up with S.B. or his, she answers she does not think they were broken up, she just needed a break from him. She describes S.B. as smart and loveable when he does not drink.

45When questioned about the timing of the bruising appearing on her body, and the colour, N.R. admits she bruises easily. She denies the bruises being from her employment.

46Defence counsel puts to N.R. a post from her Facebook page, Exhibit 15, where she posts a link about the definition of her name. N.R. however indicates the link is a game that comes up on Facebook. I accept N.R.’s explanation.

47As for when she is angry with someone, N.R. testifies she tells them what it is. She admits to having a temper. She admits to combining vodka and marijuana.

48N.R. admits to having a criminal record for uttering threats and mischief from 30 years ago, and utter threats from over 20 years ago. She denies ever threatening S.B. with legal action. She admits to a 2019 conviction for assaulting S.B. as well as a breach of recognizance.

49N.R. acknowledges to being angry enough at one point in time to put her feet through a picture. She kicked the picture because she felt that if she could not have it, nobody could.

50N.R. agrees that S.B. was not holding her on the bed, but he strangled her at one point in time. She maintains that the handcuffs were in the bedside table. She maintains she was crying during the sexual assault.

51When it was suggested she told the police on the telephone that she and S.B. had broken up, yet maintains they never broke up, she refers to the entire length of the relationship as them not being broken up.

S.B.’s evidence

52S.B. has seen N.R. lose her temper. When this occurs, she would “lose it, I mean, lose it.” N.R. screams and yells. He has been assaulted by her a few times, after which she leaves. She always holds a grudge, and she holds it well. They reconcile because they love each other. It is like a cycle for him, every three or four weeks, N.R. would go to her parents’ home for a short duration – anywhere between a few hours up to a few days.

53On June 6th, 2018, at approximately 6:30 a.m., S.B. calls N.R. and asks her to come over so they can talk. S.B. wants to make things right and is still doing damage control. When she pulls into the driveway, S.B. asks N.R. to come in. In his opinion, they are still residing together despite the argument. He denies N.R. knocking before entering and indicates that would be weird as she lives there. His evidence is that when N.R. arrives, she is angry and worked up. She is concerned about getting to work on time.

54She comes in the door and asks if she should take off her boots. He says no, not to worry about it. He is at the top of the stairs near the fridge. He goes to hug her. At first, she does not want to hug. He takes her hands from her sides and puts them on his shoulder. They talk for a few minutes about the appointment and what S.B. has been doing. They start to kiss. Then they walk slowly toward the bedroom, with N.R. walking backward, while kissing.

55In the bedroom, N.R. sits on the bed. He stands in front of her. He testifies “we both kinda knew what was going to go on, that’s why we go to the bedroom”. She says, “really S., that’s what you want to do?”, to which he answers “yes”. He is kissing her while she is on the bed. He unties her boots, takes them off. He takes off her pants, kissing her slowly. She takes off her bra and she wants to take off her shirt, but he asks her to keep it on as he says, “it’s hot”. She lays down on the bed while he kisses her, and he sucks on her breast. He then performs oral sex. The only conversation is S.B. telling N.R. how she is hot, beautiful, he missed her, and he apologizes about the voicemail message.

56After this, he asks her to turn around and go into doggy position. She complies. He goes behind her and puts his penis into her vagina. While having sex, he grabs her left hand with his right hand and brings it near her neck. It is her own hand that was around her neck while they are having sex. He says his arm is never around her neck. He agrees that he does not achieve a full erection that morning.

57S.B. and N.R. at that point are having sex, and everything is going fine. He asks her if she wants to use the handcuffs. She says no. They keep having sex. He looks at the clock, and she indicates she is going to be late for work. He gets off her, while she grabs her things and goes out the bedroom door. He repeatedly asks for a kiss, “at least give me a kiss”. He denies preventing N.R. from leaving.

58After she leaves, he lays down to go back to sleep. Approximately fifteen minutes pass, and he receives a telephone call from his parents. N.R.’s mother calls them to say he raped N.R. About fifteen minutes later, at around 10:00 a.m., his parents arrive at his home. Only around 4:45 p.m. do the police attend, by which time his parents have left. S.B. waits for them to show up. Detective Sharpe advises him of the charges and executes a search warrant.

59S.B. testifies that the handcuffs are customarily stored in a wooden box on the top shelf of the closet so his children cannot reach them.

60When he is asked about N.R. indicating she does not want to do anything anymore, S.B.’s evidence is she did not say anything.

61S.B. testifies N.R. always has bruises on her legs, arms, side and back. She never knows from where the bruises come.

62S.B. indicates that he had nothing to drink on June 6th, 2018. He admittedly likes to drink, and drinks approximately six times a week, but is able control his consumption. He usually drinks tall cans of Busch, which go into the recycling bin under the island in the kitchen, which he empties approximately every three days in the garage.

63In cross examination, S.B. says that N.R. expects him to take the first step all the time, for phone calls, hugs and kisses. He admits he does not ask N.R. before taking her hands from her side and putting them on his shoulder. S.B.’s evidence is that N.R. knows why they are going to the bedroom, which is to reconcile and kiss. He assumes this by her actions.

64He agrees that he does not ask to N.R. to have sex. N.R. never says let’s have sex, but says “really, really S., this is what you want to do?” He believes this is her asking him a question. Because they are hugging, kissing and going down the hallway together, he assumes that they are in the bedroom to have sex, “I’m assuming we are there to make up and will do what we need to do at that moment”. He assumes N.R. is okay with that. He admittedly never asks her.

65It is put to S.B. that he assumes she wants the same thing as him, to have sex. He agrees with the suggestions. When asked if he assumes she is comfortable with that, he answers “if she wasn’t, she would have let me know. She didn’t say she didn’t want to do it or get up and leave.” The crown then asks “essentially, if she doesn’t give you any warning or sign that she doesn’t want [sex], then you assume she wants”. He agrees. Then he is asked “and you did not ascertain whether she was okay or wanted. You didn’t ask her that”. S.B. replies “no”, and then says, “what do you mean ascertain? Come right out and ask her if she wants to have sex – no, I did not.”

66He assumes N.R. is okay with him removing her jeans because she leans back to allow them to be removed. She enjoys it when he is kissing her mouth, ear and neck. When he performs oral sex, she spreads her legs open and seems to enjoy it.

67The only time N.R. says “no” is when he asks if they should use the handcuffs. They continue to have sex after that. He agrees that because he never got a “no” from N.R., then he assumes it is a “yes”. When he penetrates her vaginally, she allows it, so he assumes it is okay. N.R. never says “stop”. S.B. agrees that when it ends, N.R. leaves without giving him a kiss despite repeated requests for one. He believes she thought she was going to be late for work, though he indicates her work is about 15 to 17 minutes away, and she left 30 minutes prior to her start time.

68Ultimately, his evidence is that it is not his practice to ask before each step of a sexual act. He does not deny that he does nothing throughout the interaction to make sure it is okay.

Evidence from the other witnesses

69N.R.’s mother, A.R., testifies as to N.R. leaving A.R.’s home the morning of June 6th, 2018 after receiving a telephone call from S.B. N.R. leaves at approximately 8:00 a.m., dressed for work. At approximately 9:45 a.m., A.R. receives a telephone call from N.R., who is screaming and yelling on the telephone. N.R. could hardly breathe. A.R. has never heard N.R. like this in the past. Due to what N.R. reports to have happened with S.B., A.R. tells her daughter to get to the police station, then repeats herself, saying “get the fuck to the police station now.” After hanging up with N.R., she calls S.B.’s mother to let her know what has happened, then she and her husband jump into the car to go to the police station. N.R. is already sitting in the ambulance when they arrive. A few hours later, after A.R. provides fresh clothes to N.R., N.R. returns to their home. A.R. corroborates N.R. frequently stays with her in her home and indicates that most of N.R.’s belongings are at A.R.’s home.

70A.R. feels N.R. presented as panicked on the telephone, not angry. A.R. has seen N.R. come home from S.B.’s place angry and frustrated.

71Cst. Brisson of the O.P.P. meets N.R. at the Morrisburg detachment at approximately 10:08 a.m. He observes N.R.’s bruises on her right bicep, and red marks around the front of her neck. The red marks look like something had rubbed up against her neck.

72Detective Sharpe of the O.P.P. becomes involved for the purpose of obtaining and executing a search warrant at S.B.’s home. The search warrant is executed at 4:45 p.m. Upon entry into the home, Detective Sharpe notices a chair at the front door on its side. He notes S.B. has a strong odour of alcohol and presents with bloodshot eyes but observes no other signs of impairment. Amongst items located by the police from what is confirmed as S.B.’s bedroom, is a small wooden box which contains a pair of black handcuffs and a key. The box containing the handcuffs is found on a high shelf in the closet. Detective Sharpe indicates S.B. is cooperative throughout the process.

73S.B.’s father also testifies. Given he has the same initials, he will be referred to as S.B.F., for S.B.’s father. S.B.F.’s evidence is that he has seen N.R. angry, and recounts one incident from March 2018 where N.R. barges into S.B.’s home, screaming, yelling, ranting, and “going off like a canon”. N.R. had moved out two days prior and was attending to pick up her belongings. S.B.F. asks N.R. for the key to the house, which she provides while, possibly accidentally, slapping him with the papers she has in her hands. An argument over a painting ensues, where N.R. says “if I can’t have it, nobody can have it”, and she proceeds to smash the painting and frame, causing damage to the wall and floor. When leaving, N.R. pushes S.B.F. with her shoulder onto the kitchen island and slams the door.

74On June 6th, 2018, S.B.F. receives a telephone call at approximately 9:40 a.m. from N.R.’s mother, saying S.B. has just raped N.R. He drives over to S.B.’s home about 10 minutes after the phone call. Upon arrival, S.B. is sleeping. S.B.F. yells at S.B., describing the telephone call he just had. S.B.F. checks out the house as he does not want any of N.R.’s marijuana to be found by the police. He finds no alcohol in either of the fridges or the garage. S.B.F. does not believe S.B. is intoxicated, but he describes him as dozy as he has just woken up. S.B.F. describes S.B.’s reaction to being told of the allegation as being flabbergasted and dumbfounded. In cross examination, S.B.F. indicates he speaks with S.B. for about an hour and does not believe S.B. to be intoxicated. He admits that S.B. tolerates alcohol well, and he has not seen him drunk very often but would normally show signs of impairment if he were drunk.

Analysis

75In this case, both the complainant and accused admit they engaged in sexual relations. The complainant’s evidence is she did not consent. The accused relies on an honest but mistaken belief of consent of the complainant, which will be addressed in the mens rea portion of this decision.

76Prior to analyzing the issue at hand, I first note that during his testimony, the accused referenced the couples’ “routine”. It was clarified that this “routine” was that the couple would fight, following which they would make up. The concept of “routine” was not advanced in any impermissible 276 fashion. I have as such disabused myself of any evidence which runs contrary to the s. 276 regime.

77I am aware that some of N.R.’s criminal record involves convictions for an assault against the accused and a breach of recognizance, for which she received a conditional discharge and 8 months’ probation. However, I am not persuaded that these convictions, which post-date the allegations herein, have any bearing on whether the incident occurred in the first place.

78I am equally aware that S.B. has a criminal record, but it does not affect my assessment of his credibility.

79Based on the evidence presented, as well as the cross examination of N.R., I find there to be no significant inconsistencies in her evidence. I acknowledge however that consistency does not equate to reliability.

80I find that N.R. is initially hesitant in her evidence while testifying, while trying to recall the sequence of events. At trial, the crown suggests N.R. review her preliminary hearing transcript. N.R. testifies she did not have the chance to finish reading the transcript earlier in the day. Defence counsel initially objects and indicates his concern is that N.R. will just be “reading from a script” which would not be her memory. In response to this comment, N.R. takes a deep breath, and says “what do I remember happening? He asks me to go on my fours and I did. And then, because I wasn’t wet, he went down on me. And then he tried to put his penis inside my vagina. And he got mad because he couldn’t get it hard.” N.R. then directs her comments to S.B., saying “do you remember that? Do you remember licking me, and licking me again? And because you couldn’t keep it hard, you put it in again and got mad because you couldn’t keep it hard. Do you remember that? Do you remember me telling you to stop?” She then says “I feel like I’m the one who’s done something wrong. Why would I bring this to court when I love the man? I don’t understand that, why would I bring it this far? Because I love you. Why would I do that? I’m sorry, it just bothers me that I’m being investigated on something he created. He made this problem.” N.R. admits she doesn’t remember every step by step of what happened, but states “I do that know that he hurt me. I do know I told him to stop and he didn’t.”

81Despite N.R. not clearly recalling the sequence of every step of the sexual assault, her evidence is articulate and contains a great deal of detail and context regarding the offence, the positions the parties were in, which way they were facing, as well as her emotional state during the alleged incident. Numerous details are uncontradicted.

82As the accused testified, I must consider his evidence. I find S.B. is articulate, polite and concise. His evidence is offered in a very straightforward manner. He is notably helpful when he can be. S.B. does not dispute many of the peripheral details regarding the sexual activity, or that handcuffs form part of the subject matter.

83What I find particularly consistent in both parties’ evidence is how the visit at S.B.’s house ends. While the reasons behind same is different, both N.R. and S.B. recount that N.R. leaves the home in a rush, dresses outside of the bedroom, and does not give S.B. a kiss goodbye despite his numerous requests for same. I find this consistent evidence to be particularly compelling regarding N.R.’s state of mind.

84N.R. remains internally consistent in her testimony, including throughout cross examination. There is no evidence that the complainant says or alludes to anything different on any earlier occasions. Her explanation of events is logical. I do however find that there is a lack of recollection about the specific order of events, in particular regarding when the handcuffs became an issue between the parties. However, I am persuaded that the handcuffs happened somewhere in the middle of the events, as opposed to the end of the incident. N.R.’s explanation of events makes logical sense. They are bolstered by the observations made by the police officer within minutes of the event occurring and are consistent with her mother’s evidence regarding the telephone call.

85I find it is significant that S.B.F.’s testimony is that he searches S.B.’s home and finds no alcohol in the home or garage. This evidence is contrary to S.B.’s evidence of drinking the night before, and N.R.’s evidence about seeing a few beers on the counter that same day. S.B. testifies he waits for the police to attend that day. S.B.’s evidence is that he does not drink that day, yet several hours later, when Detective Sharpe attends, he observes S.B. to have a strong odour of alcohol. Detective Sharpe’s evidence is more objective as to whether the accused has been consuming alcohol. I find Detective Sharpe’s evidence to be consistent with N.R.’s testimony, and inconsistent with the accused’s evidence.

86S.B.’s evidence is also inconsistent to that of his father regarding the telephone call from his parents shortly after N.R. leaves his home to advise they are on their way to him. S.B. says he stays awake waiting for them. S.B.F. however does not mention this phone call and indicates when he arrives at S.B.’s home, he has to wake him up. S.B.F.’s view is that these allegations are so unexpected that surely S.B. being asleep upon arrival is significant in showing that nothing untoward happened. I do not accept S.B.F.’s suggestion on this issue.

87I am alive to the change in N.R.’s demeanor from direct examination to that that in cross examination. In direct examination, she presents as trying to get through an ordeal. She cries intermittently but seems determined to complete her evidence. In cross examination, her answers are frequently aggressive, questioning and to an extent belligerent. She admits she has a temper and can hold a grudge. However, no complainant reacts the same way to events in their lives, nor do they necessarily react one way to being questioned about their evidence. N.R.’s answers remain unambiguous and are presented with conviction and fervour. She does not shy away from or attempt to deny unfavourable facets of her personality or regarding the events.

88While there are inconsistencies in the evidence regarding the location of the handcuffs, the evidence suggests S.B.’s children are supposed to visit on the day of the alleged incident. The possible change of location of the handcuffs can be rationalized by the length of time it takes for the police to attend S.B.’s home. Nevertheless, what is consistent in the evidence is that handcuffs are mentioned by both the complainant and the accused. N.R. indicates she hears the handcuffs, and that S.B. tries to handcuff her during the alleged assault. S.B. indicates he asks whether N.R. wishes to be handcuffed, and when she replies no, and he does not use them.

89The defence suggests that N.R. initially tells police she was assaulted and may not have reported being sexually assaulted until she physically met with police. I am mindful that all complainants react differently to events, and therefore do not find this to be significant in assessing her credibility.

90On the totality of the evidence, I am not persuaded that these allegations stem from N.R. seeking vengeance on S.B., or due to her holding a grudge against him. I accept N.R.’s denial of this motivation, and I am not persuaded that this was what was going on.

91Ultimately, I find N.R.’s evidence on this issue to be completely credible. The core of her allegations remains consistent. N.R. gives fulsome details regarding the allegation. While her temperament changes considerably between direct examination and cross examination, I find that this is due to defence counsel’s choice of words when N.R. has trouble recalling the sequence of events. Specifically, I noted a visceral reaction from N.R. when defence counsel suggests she would simply be reading off a “script” if permitted to refresh her memory. In immediate response to defence counsel’s comment, N.R. determinedly provides cogent and particularly persuasive testimony about the sexual assault allegation. I am also alert to the oath helping nature of some of her comments, upon which I place no weight.

92After weighing the entirety of the evidence, I find that there was touching of a sexual nature by S.B. toward N.R. I find as a fact that in her mind, N.R. did not consent to the sexual activity occurring.

93I am persuaded, beyond a reasonable doubt, that the actus reus of the offence is made out. Given this finding, I now move on to determine whether the crown has proved beyond a reasonable doubt that the accused knew, or was willfully blind or reckless, that the complainant was not consenting to the sexual activity in question.

Issue #2: Has the crown proved beyond a reasonable doubt that the accused knew, or was willfully blind or reckless, that the complainant was not consenting to the sexual activity in question?

94The meaning of consent in the actus reus portion of the analysis is different than in the mens rea analysis: A.(J.), at para. 37; Ewanchuk, at paras. 48 to 49. As set out in A.(J.), “[u]nder the mens rea defence, the issue is whether the accused believed that the complainant communicated consent.” [emphasis in original]

95The Supreme Court of Canada indicates that the accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated her consent to engage in the sexual activity. Barton adopts the wording in Ewanchuk that consent means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (See Barton, para. 90; Ewanchuk, para. 49) The attention shifts from the complainant’s state of mind in this analysis to the accused’s mental state to determine whether he “honestly believed the complainant effectively said ‘yes’ through her words and/or actions”: Barton, para. 90; Ewanchuk, para. 47.

96In this case, S.B. argues that N.R. consented to the sexual activity. He also argues that if N.R. did not consent, he had an honest but mistaken belief in consent. As set out in L.S., at para. 39:

If an accused argues that he had a belief, albeit mistaken, that the complainant consented to the sexual activity, the accused is in effect arguing that the Crown has failed to prove the knowledge requirement beyond a reasonable doubt. If that doubt is said to be based on the accused's honest belief in consent, the accused must show that he took "reasonable steps" to "ascertain that the complainant was consenting": R. v. L.S., 2017 ONCA 685, at para. 39.

97 Section 273.2 C.C.C. codifies the honest but mistaken belief in consent defence. It requires the accused to take reasonable steps to ascertain the complainant is consenting. It goes on to state where belief in consent is not a defence if: (a) the accused’s belief arose from the accused’s self-induced intoxication, or recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

98The crown always bears the burden of proving the actus reus and mens rea beyond a reasonable doubt. It is however incumbent on the accused when raising this defence to explain “how and why [the] evidence informed his honest but mistaken belief that [the complainant] communicated consent to the sexual activity in question at the time it occurred.” (Barton, at para. 93) As set out in Ewanchuk, the defence of mistake is simply a denial of the necessary mens rea. It does not impose any burden of proof on the accused. (Also see R. v. R. (J.D.), 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918 (S.C.C.))

99To rely on the mistaken belief of consent, the accused must believe the complainant communicated her consent for every sexual act, but he must also have taken reasonable steps to ascertain she was consenting to engage in the sexual activity, at the time it occurred. Parliament has indicated that the consent of the complainant must be an ongoing state of mind: A.(J.) at para. 42. The communication of the consent may be by words or conduct: Barton, at para. 91, citing Ewanchuk, at para. 46 and A.(J.).

100The Supreme Court of Canada clearly articulates in A.(J.) and Ewanchuk that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. “It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault.” (See A.(J.) at para. 47; Ewanchuk, at para. 31)

101It is an error of law for the accused to believe that the complainant is still consenting after she expresses a lack of agreement to engage in the activity. “Activity” is interpreted in the case law as indicating every individual or separate action of a sexual nature. (See A.(J.), at paras. 39, 40)

102It is equally clear from A.(J.), that (1) the accused must stop all sexual contact once the complainant expresses she no longer consents, (2) that the complainant does not tell the accused to stop does not mean she consents, (3) the complainant need not express her lack of consent to the sexual contact for the actus reus to be established, (4) a person has a right to consent to any particular act, and to revoke her consent at any time. (See A.(J.), at paras. 41 and 43, and R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3.

103It is important to note that a complainant does not need to object by word or gesture, and lack of resistance must not be equated with consent: M.(M.L.), at para 2.

104The reasonable steps requirement is a precondition to the accused’s defence of honest but mistaken belief in communicated consent. No reasonable steps, then no defence. (See Barton, at paras. 104 and 115). “It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time.” Barton, at para. 104.

105The court sets out in Barton, “As L’Heureux-Dubé J. stated in Park, “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary” (para. 44 (emphasis in original)). (See Barton, at para. 91; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 (S.C.C.)). An absence of positively communicated consent should be interpreted as a lack of consent: Park, at paras. 42 to 47.

106The reasonable steps requirement engages the court in a highly fact-specific and contextualized inquiry. What is clear is reliance on stereotypical assumptions about women such as their passivity, silence or ambiguous conduct is not evidence of reasonable steps, and more importantly, belief by the accused that any of actions (or inactions) constitutes consent is a mistake in law. (See Barton, at para. 107, Ewanchuk, at para. 51)

107As articulated in Barton, there are three consent-related mistakes of law are particularly relevant to the mistaken belief in consent defence: implied consent, broad advance consent, and propensity to consent. Implied consent, reliance on assumptions or implied circumstances based on the relationship between the accused and complainant are errors in law upon which the accused cannot rely as a defence. The accused’s assertion to rely on broad advance consent, such that the complainant consented in advance to future sexual activity is equally a mistake in law, not a mistake in fact. Finally, “[t]he law prohibits the inference that the complainant’s prior sexual activities, by reason of their sexual nature, make it more likely that she consented to the sexual activity in question (see Code, s. 276(1)(a); Seaboyer). This is the first of the “twin myths”. Accordingly, an accused’s belief that the complainant’s prior sexual activities, by reason of their sexual nature, made it more likely that she was consenting to the sexual activity in question is a mistake of law.” (See Barton, at para. 100)

108The Supreme Court of Canada in R. v. Esau, states: “before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence”: R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 15. “All that is required for the accused to adduce some evidence, or refer to evidence already adduced, upon which a properly instructed trier of fact could form a reasonable doubt as to his mens rea”: R. v. Esau, ibid; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 (S.C.C.). However, as set out in Esau, the question of reasonable steps is a question of fact that is only determined after the air of reality test has been met.

109As the case law indicates, when the accused asserts the honest but mistaken belief in consent, if his belief is mistaken, the court must still examine the honesty of the belief in question. Initially, the court must determine if there exists any evidence to lend an air of reality to the defence. If so, then the question to be answered is “whether the accused honestly believed that the complainant had communicated consent”: See Ewanchuk, at para. 64. The accused’s belief cannot be “reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2.” (Ewanchuk, at para. 64).

110The defence of honest but mistaken belief in consent is a mistake in fact defence. This is different to a mistake in law, which is not an available defence. More importantly, as set out in Barton, “a belief that the absence of signs of disagreement could be substituted for affirmative communication of consent is a mistake of law.” Further, “[a]s a matter of law, consent must be specifically renewed — and communicated — for each sexual act.” (See Barton, at para. 118)

111If the complainant expressed at any time a lack of consent or agreement to engage in the sexual activity, then the accused must point to some evidence from which he could honestly believe consent to being re-established before he resumed his advances. “If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.” Ewanchuk, at para. 65.

112The reasonable steps requirement is to ensure that the accused cannot take the absence of a “no” as an automatic consent to sexual activity. (See Barton, at para. 105) Moreover, continuing sexual contact after someone has said “no” is at minimum reckless conduct which is not excusable.

113As stated by Justice Moldaver on behalf of the majority in R. v. Morrison, citing R. v. Sansregret:

Recklessness refers to the state of mind of a person who, "aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk": Sansregret, at p. 582. By contrast, wilful blindness "arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant": p. 584.” See R. v. Morrison, 2019 SCC 15 at para. 100; R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570.

114The crown can establish the accused knew the complainant did not consent to the sexual activity by proving, beyond a reasonable doubt, actual knowledge regarding lack of consent, by proving recklessness, or by proving the accused was wilfully blind to the issue of consent. Ultimately, the mens rea of the offence is established if the accused remains wilfully blind or reckless by acting on an assumption of consent without receiving or eliciting consent to the sexual activity.

Analysis

115In this case, the crown relies on the accused failing to take reasonable steps to obtain N.R.’s consent to the sexual acts taking place, or alternatively that the accused was completely reckless or wilfully blind regarding his obligation to obtain consent.

116As set out above, S.B.’s position is that N.R. consented to the sexual activity. He also argues that if N.R. did not consent, he had an honest but mistaken belief in consent.

117To consider S.B.’s state of mind, and what he knew about N.R.’s consent or lack of it, I must consider all the evidence, what each of them did or did not do, what was said, and how the event transpired.

118S.B.’s evidence is that he relies on N.R.’s words and conduct in determining whether she consents to the sexual activity. He believes N.R.’s comment “really S., this is what you want to do” is a question, and assumes she consents to having sex. He relies on N.R. leaning back when he takes off her jeans, that she removes her own bra, that she spreads her legs open during oral sex, and that she seems to enjoy it, as consent to the sexual activity.

119I am prepared to assume there is an air of reality to S.B.’s belief in consent based on some of N.R.’s actions, such as taking off her bra. I find that the accused perceived this behaviour to be consent to the sexual activity.

120However, over and above the accused believing the complainant is consenting, he must also take reasonable steps to ascertain consent to the sexual activity. The onus is on the crown to prove beyond a reasonable doubt that the accused failed to take reasonable steps. The case law is clear that the reasonable steps requirement is a precondition to the defence.

121Steps grounded in mistakes of law cannot constitute reasonable steps. As set out in Barton, if the crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, then the court must go on to consider whether the crown has nevertheless proven beyond a reasonable doubt that the accused did not have an honest but mistaken belief in communicated consent. (See Barton, at para. 123)

122S.B. relies on N.R.’s comments: “really S., this is what you want to do”, and “you want my clothes off, you take them off”, and a lack of objection, to be evidence of communicated consent. However, context is important. The couple is amid a quarrel that commences days prior. Before entering the bedroom, S.B. requests a hug from N.R. She declines. He takes her arms from her sides and places them on his shoulders. He then guides her to the bedroom. Upon sitting her on the bed, N.R. says “really S., this is what you want to do?” This comment is at best ambiguous. It is certainly not a yes.

123S.B. indicates that when he penetrates N.R. vaginally, because she allows it, he assumes it is okay. He relies on N.R. to tell him if she is not comfortable. He indicates “she didn’t say she didn’t want to do it or get up and leave” and “she never says stop” to the sexual contact. He indicates that he does not use the handcuffs when N.R. says no to their use and suggests that he would have stopped if she had said no to anything else.

124S.B.’s evidence is that N.R. had her keys in her hand during sex, which she could have used as a weapon to stop the contact. She has hit him in the past and has a criminal record for violence, therefore she could have stopped the sexual activity if she was not a willing participant.

125S.B. readily admits he does not ask N.R. if she wants to have sex. He agrees that he does not obtain consent before each step of a sexual act.

126He agrees when the crown suggests to him that if N.R. does not give him any warning or sign that she does not want to have sex, then S.B. assumes she wants to have sex. His evidence is that because he never gets a “no” from N.R., then he assumes it is a yes. He relies on this assumption to determine that N.R. consents as she does not say no.

127These assumptions are all errors in law, which afford the accused no defence. It is also an error in law to rely on the relationship with the complainant to infer implied consent to the sexual activity. Moreover, S.B. cannot rely on the N.R. having a criminal record which involves violence to suggest she can hit him, or that she did not use her keys as a weapon to escape as reasons to assume consent.

128I find N.R.’s evidence regarding this allegation credible and reliable. I accept N.R.’s evidence regarding the way the event ended, with a rushed exit from the home, dressing outside of the bedroom and not giving S.B. a kiss goodbye despite his repeated requests for same. The evidence from both S.B. and N.R. are consistent in this regard. I find this evidence to be post-event demeanor evidence which corroborates N.R.’s version of events regarding being sexually assaulted. (See R. v. A.J., at para. 41)

129I have considered S.B.’s evidence and am mindful of the W. (D.) analysis. I note that the version of events provided by both N.R. and S.B. are not diametrically opposed. They have several similarities. However, S.B.’s evidence is that he relies on assumptions and errors in law to establish N.R.’s consent. I find, beyond a reasonable doubt, that S.B. failed to take reasonable steps to ascertain N.R.’s consent to any of the sexual activity. He fails to ask N.R. if she consents to oral sex, or doggy position, or further oral sex. He relies on a mistake of law by assuming she consents as she does not leave or use her keys as a weapon. The obligation however is not for N.R. to leave or fight back, but for S.B. to obtain her consent.

130Even if I were persuaded that S.B. took reasonable steps regarding obtaining N.R.’s consent, I find that he did not cease the sexual contact after she said no.

131I find as a fact that N.R. tells S.B. “no” when asked to go into doggy position, but he nonetheless maneuvers her into the position and penetrates her vaginally. Moreover, while S.B. denies ever hearing N.R. saying “stop”, I am persuaded beyond a reasonable doubt that she tells him to “stop” on at least one occasion while in doggy position. I find as a fact that N.R. tells S.B. “it hurts” and to “stop”. I also find that despite the requests to stop, S.B. does not stop the sexual activity.

132In telling S.B. to stop, I find N.R. expressly communicates her lack of consent to the sexual activity. I find that the accused does not stop when told to do so, nor does he obtain any further consent from that point onward in the interaction.

133Even if I were persuaded that the complainant consented to the sexual activity up until she said “no” or “stop”, the law is clear that the accused must stop all sexual contact once the complainant expresses she no longer consents. I find this failure to stop is a product of S.B.’s recklessness.

134After considering the totality of the evidence on the issue, I am not left with a reasonable doubt that the accused failed to take any reasonable steps to ascertain N.R.’s consent.

135While I have considered the evidence from both parties regarding N.R.’s bruises, given N.R.’s testimony that she bruises easily, I am not persuaded beyond a reasonable doubt that the bruises were caused by this incident.

136Though I find N.R.’s evidence on this issue to be completely credible, I have considered the accused’s evidence and kept the burden of proof and principle of reasonable doubt firmly in my mind.

137For the reasons articulated above, I find the accused guilty of sexually assaulting N.R.

Issue # 3: Has the crown proven beyond a reasonable doubt the allegation uttering threats?

138In order to prove the charge of uttering threat of 264.1(1)(a) C.C.C., the crown must prove beyond a reasonable doubt that the accused, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person.

139N.R.’s evidence is that the accused threatens her on June 6th, 2018. The threat occurs during the sexual assault, where S.B. tells N.R. “today is your day, I don’t care if I go to jail, today is your day”. N.R.’s evidence is she feels scared by this comment. She believed she was going to end up dead, that S.B. was going to hurt her enough to probably kill her, based on the look in his eyes. She admits that S.B. never specifically threatened to hurt or kill her.

140The accused testifies and denies threatening N.R.

141The comment alleged to have been made by the accused is to be analyzed objectively, that is, what meaning would a reasonable person give to the words used in the circumstances in which they were spoken. In the circumstances described above, would a reasonable person perceive “today is your day, I don’t care if I go to jail, today is your day” to be a threat?

142I have considered the circumstances in which words are alleged to have been used, the way they were communicated, to whom they were addressed, the nature of their relationship and the plain and ordinary meaning of the words used.

143Based on the evidence, I cannot find beyond a reasonable doubt that S.B. made a threat, and thus find him not guilty on this count.

Issue #4: Has the crown proven beyond a reasonable doubt the allegation of assault?

144In order to prove an assault pursuant to section 266 C.C.C., the crown must prove beyond a reasonable doubt, pursuant to section 265 C.C.C., that without the consent of the complainant, the accused applies force intentionally to the complainant, directly or indirectly.

145N.R.’s evidence is that this incident occurs on Mother’s Day 2018. She is at S.B.’s house. He is drinking that day. She goes to bed that night as S.B. continuously bombards her with questions and she wants to prevent an argument. S.B. goes in and out of the bedroom a few times while she is in the bedroom.

146At one time, S.B. gets on the bed and puts his hand over her mouth, covering her mouth and nose. She struggles and tries to get his hand off her face. She does not recall what words were used, but that he thinks it is funny. She has trouble breathing. She manages to get his hand off. She is then on the side of the bed, on her knees. She goes to the bathroom and faces away from the vanity. S.B. comes into the bathroom, and with closed fists hits her in the stomach.

147When asked how she remembers it was Mother’s Day, she indicates she wrote it down in her calendar. Though she testifies during her the preliminary inquiry she did not recall if she went home, she now recalls she went home that night. She says sometime around 11:00 p.m. that night she tells her mother everything.

148In cross examination, N.R. admits she may have been at her mother’s home earlier in the day of Mother’s Day but recalls the incident in question occurs at night.

149S.B. does not recall hitting N.R. in the stomach with his fists. He recalls going to his parents’ home that day, for two to three hours, then returning home. He believes he saw N.R. that morning, but she does not go with him to his mother’s home and recalls N.R. goes to see her own mother. He does however remember N.R. hitting him in the stomach in the laundry room sometime around that same time period, either shortly before or after Mother’s Day, from which he walks away.

150Having considered W.D., the totality of the evidence including the inconsistencies of where N.R. goes that night, I am not persuaded beyond a reasonable doubt that S.B. assaulted N.R. by hitting her in the stomach on Mother’s Day.

151However, the assault charge is not further particularized beyond the single day timeframe. Although her evidence is brief, I find N.R.’s account for the assault involving the bed to be sufficiently detailed, straightforward, credible and reliable. Additionally, it is completely unchallenged in cross examination. S.B. testified, and could have addressed this allegation, but failed to do so.

152I accept N.R.’s evidence regarding S.B. putting his hand over her mouth and nose while in bed. I am satisfied this occurred on the same day as set out in the indictment. With this allegation, I accept N.R.’s evidence entirely.

153In the circumstances, I am persuaded beyond a reasonable doubt that the accused’s actions are an intentional application of force to N.R., without her consent. As such, find S.B. guilty of assaulting N.R.

Conclusion

154There is a finding of guilt on the sexual assault charge as well as the assault charge.

Madam Justice Hélène C. Desormeau

Released: November 18, 2019