Court File and Parties
COURT FILE NO.: CR-19-30000511-0000 DATE: 2020-05-15 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – IA Accused
Counsel: Julie Battersby, for the Crown Cemal Acikgoz, for the Accused
HEARD: March 9 – 13, 2020
BEFORE: B.A. Allen J.
Reasons for Decision
Publication Restrictions Notice
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code of Canada. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.
Background
[1] The accused, IA, is charged with several sexual offences against the complainant, KH, alleged to have been committed on September 16, 2018 at his residence. The Crown called KH and AS, a friend of KH whose home KH went to after the incident. KH and IA provided pre- and post-incident contextual background that was substantially similar. The parties’ descriptions of the sexual acts involved in the encounter however differ in some important ways.
[2] AI does not deny a sexual encounter with KH. An Agreed Statement of Facts between the parties establishes this. KH alleges four incidents of unprotected non-consensual vaginal intercourse and an incident of forced oral sex on him. AI admits to three incidents of unprotected vaginal intercourse but says the acts were consensual. Although not conceded in the Agreed Statement of Facts, but testified to at trial, AI also admits he had anal sex with KH on consent. KH, however, testified she did not know whether there was anal intercourse. IA also admitted in evidence to an incident of digital penetration.
[3] This is a he “say/she say” case of a somewhat different sort. AI admits to incidents of vaginal intercourse with KH. He provides a narrative different in important aspects. In my estimation in his account he does not attempt to minimize or diminish the circumstances. In some respects, especially with the admission of anal sex when KH is not sure of this, his account of the sexual activity might be regarded as more serious, more invasive than alleged by KH.
[4] Clearly, the focus of the determination is on credibility. In considering this issue I am of course mindful of the Supreme Court’s caution that the trier of fact must evaluate the evidence of a witness in relation to all the evidence presented at the trial as a whole, not to be assessed in a vacuum. And the evidence must not be treated as a contest of credibility between witnesses. The burden of proof must remain with the Crown. The trier must avoid reversing the burden onto the accused. Doing so would force the accused to disprove their guilt if the trier is seen to prefer one testimony to another: R. v. W.(D.), [1991] 1 S.C.R. 742. I will expand on the relevant principles later in my Reasons.
[5] For reasons set out below, I find the evidence in its totality raises a reasonable doubt in my mind about IA’s guilt of the offences alleged.
Background Evidence
[6] KH, now age 20, was 19 years of age on Friday, September 16, 2018 when the alleged offences were committed. IA was 28 years of age when he was arrested and is currently age 29. KH met the accused through an internet dating site called Badoo. As to her knowledge about the App, KH first testified in - chief that she knew the site was a dating App. But she followed that answer saying she was not sure what sort of App it was. IA says everyone using the site knows that it is a dating App for people seeking connections with others. She and IA first communicated through the App and then began messaging by text. IA called himself “Ishak” during the communications. Photographed copies of the texts exchanged were made an exhibit at trial.
[7] By text, IA introduced himself and asked KH, “What are you looking for?”, to which KH responded, “I’m good.” On Saturday, the next day, IA again asked KH, “What are you looking for?” He then asked if she wanted to go for a coffee around 4:00 or 5:00 pm. IA once again asked her what she was looking for and KH did not respond to that question. KH said, “I have plans today but definitely another time.” IA asked when they could meet and she responded, “I’m not sure.” He suggested they meet the next week and she responded, “Ok.”. IA again asked KH what she was looking for and whether she was looking for a friendship. KH did not respond.
[8] On Sunday, IA asked if KH could answer the question as to what she was looking for. She answered “ wyd ” (“what are you doing?”). He responded that he was at home and asked if she was busy. KH responded, “Not really.” He asked if she would like to go for a coffee and she replied she was going out later but she could meet him a t 5:00 pm. In her evidence KH did not indicate when she had to leave due to her plans for the night. IA stated that she told him her plans were for her to return home at 7:00 pm. KH provided IA with the intersection near her home where he could pick her up.
[9] KH described what she was wearing, a black tube dress and a blue jean jacket. IA picked her up and they settled on meeting at a Tim Horton’s coffee shop. When they arrived there at about 5:15 pm on Sunday they each ordered drinks and sat and talked for about two hours. The Crown entered a video recording of KH and IA entering Tim Horton’s sitting at a table and of IA going to and returning from the washroom.
At Tim Horton’s
KH’s Evidence
[10] The video recording at Tim Horton’s shows IA and KH arriving there at 5:15 pm. KH did not have much to say about what occurred at Tim Horton’s.
[11] KH testified she and IA talked about their work, their education and their backgrounds. She testified IA then suggested they go to a park. She agreed. On cross-examination KH denied the suggestion that it was her idea to go to a park. While they were still at Tim Horton’s they both started searching for parks on their cellphones. KH said that IA suggested they could just walk around in the park. Before they left Tim Horton’s for the park, IA went to the washroom.
IA’s evidence
[12] IA’s evidence about what occurred at Tim Horton’s is much more detailed than KH’s.
[13] IA testified that when he arrived at Tim Horton’s his intention was to drive KH to her home after having a coffee because of her plans for 7:00 pm. He said KH was expecting her mother to call her. KH’s evidence is that she did not give IA a specific time when she had to be at home. She testified at one point in her evidence that she did not recall what time she told IA. Later in her evidence she said she “thinks” she told him she had to be home by 9:00 pm.
[14] IA testified that he told KH that he was looking for a short-term relationship. He said he turned to KH and asked her what she was thinking. According to IA, KH responded, “I’m looking for the same thing, to which IA responded, “We can be good friends.’’
[15] IA testified that at Tim Horton’s KH asked if he had Netflix at his home, to which he responded that he did not. According to IA, KH asked at least ten times whether he had Netflix and whether they could go to his home and watch a movie. Each time he turned her down. IA said that in response he kind of laughed it off and said that “it should not happen on the first date.” He testified he made it clear to her that they were not going to his home to watch a movie.
[16] On cross-examination, Crown counsel questioned IA about what he meant by the latter statement. He explained what I understood to mean that he did not think it was right to use wanting to watch a movie as a pretext for an intention to have sex. He testified that he could tell that KH really wanted to go to his home to have sex. He testified that she also told him she liked him. He said her body language told him that. He referred to her looking at him and asking about his eyes and eyebrows and about shaving. He understood from her words and actions that she was giving him a clear message that she liked him.
[17] Crown counsel put to IA that KH never said to him that she wanted to go to his home to have sex. IA responded that she did not say that in words. She said it with her body language by kissing and touching him. But insisted that he made it clear to her that they would not be watching movies at his home.
[18] Contrary to KH’s evidence, IA testified that it was KH’s idea to go to a park. Not his. She said she would like to go to a place where they could be alone. He said KH said this just before they left Tim Horton’s. IA testified that he had to go to the washroom and if her mother did not contact her, he would take her home. Each time, according to IA, KH said she had sent a message to her mother and she was awaiting a response. IA’s evidence was that he kept reminding KH that she had plans for 7:00 pm and he would take her home.
[19] When the mother ultimately did not call, according to IA, KH, “Looked into my eyes and said, ‘Please let’s go somewhere where we can be alone’”. He understood that she was referring to his home. IA said he then responded seriously, “Today, we are not going to my home.”
At the Park
KH’s Evidence
[20] The video recording at Tim Horton’s shows that after IA went to the washroom and returned, they left the coffee shop at about 7:00 pm. As noted above, KH’s evidence is that at Tim Horton’s IA suggested that they go to a park and walk around. When she agreed they both began looking up parks on their cellphones. IA drove around and they finally settled on Thompson Memorial Park.
[21] KH testified that after parking she and IA walked into the park and sat side-by-side on a bench. According to KH, IA asked her why she was not looking at him, to which she responded that she did not know. KH said he then put his hand on her chin and moved her face towards him. She said he smiled at her and then began holding her hand. He then wrapped his right arm around her neck and leaned in and kissed her on her mouth. KH stated that she did not want him to kiss her at that point.
[22] KH stated that without saying anything to her first, IA put his hand under her dress on her vagina over her underwear. She testified she grabbed his wrist and moved his hand from under her dress. She said he then took her hand and put it over his private parts over his jeans and she moved her hand away. She testified she said to IA, “What are you doing. We are in public?”
[23] On cross-examination, defence counsel questioned KH about not telling the police in her interviews on September 17th and the 21st, and not testifying at the preliminary inquiry on August 8, 2019, that IA took her hand and placed it on his private parts. KH did not deny that she omitted to give that evidence to the police and at the preliminary inquiry. What she said was that she did not think she gave that information to the police and did not recall whether she said that at the preliminary inquiry.
[24] KH’s evidence is that IA then suggested that they go to his home, to which she asked what they would do there. She stated that he said they could watch a movie. They then walked to his car and she said that on the way he kissed her again on the mouth. Neither of them said anything to each other at that time. On cross-examination, KH agreed that she did not tell the police that IA kissed her on the way to the car. In-chief, KH testified she did not want him to kiss her. In answer to the question whether she kissed him back KH first said, “I believe so.” To a follow up question as to whether she remembered whether she kissed him back she said she did kiss him back.
[25] KH testified that after they left the park, IA asked her whether she had protection to which she queried, “Protection for what?”. She said he responded, “For kissing you.” She said he said nothing further about that and they both laughed it off. She said she knew he meant the protection of a condom was for sex. She followed up that she knew she was not going to have sex and she just asked him what the protection was for to see what he was going to say. On cross-examination KH gave inconsistent evidence. When defence counsel suggested she knew IA had the intention to have sex when he asked about protection, KH said, “No.” In - chief, KH testified that she had no concerns about going to his home at that point.
IA’s Evidence
[26] Contrary to KH’s evidence, IA testified that it was KH’s idea to go to the park. According to IA, KH said she wanted to go somewhere where they could walk and spend some time alone and he agreed. They arrived at the park at about 7:15 pm and walked to a bench and sat down.
[27] IA testified that when they sat down KH began to laugh loudly. She did not answer when he asked what she was laughing at. He said she laughed for about two minutes and he then extended his hand to her and asked if she wanted to hold his hand. She continued to laugh while turning away from him when he asked that question. Similar to KH’s evidence, IA testified he took his finger and slowly turned her face toward him.
[28] IA’s description of what happened on the bench differs decidedly from KH’s evidence. IA’s evidence was that at this point KH again told him she liked him. He said nothing in response. Then, according to IA, KH hugged him and he hugged her back. They started kissing for about three minutes. Contrary to KH’s evidence that IA was the initiator, it is IA’s evidence that after the kissing, KH first touched his private parts on top of his pants and then under his belt inside his pants. He said he responded by touching her private parts.
[29] IA testified that after the kissing and touching he somehow changed the subject and started asking questions about the park, about the number people walking dogs. He said he did this because he was going to tell KH that he was going to take her home.
[30] IA then told KH that it was past 7:00 pm and he would take her home. He testified that she looked away from him for about a minute and then turned to him and said, “We can go to your house for a minute.” IA said he responded, “Yes” and asked if she was sure because it was already past 7:00 pm and her mother had not yet answered her calls. He testified that KH responded that they could go to his home and when her mother called, he could take her home. IA agreed.
[31] IA testified that after KH said she liked him in “a lustful tone” and asked that they go to his home, he understood that they were going to his home for a “sexual encounter.” IA said he repeated the question about whether she was sure since her mother had not returned her call. It is IA’s evidence that KH then “held him and embraced him with lust”. They then left the bench. He testified that when they were halfway to his car, KH kissed him passionately and felt his private area with her hand and said, “I can feel you.” They had a brief kiss at that time.
[32] At about 7:30 pm, they got into his car and drove to his home. Similar to KH’s evidence, IA testified that en route to his home he asked her, “Do you want protection?” He said she looked out the car window, and laughing, she asked, “For what?” He told her if she needed protection, he would go to a store to buy condoms because he had none himself. He indicated that she responded that it was “fine” which he said he understood to mean she did not need protection for sexual intercourse. They then proceeded to his home.
[33] IA testified they both talked about sex in his car and they both wanted to have sex, not just him. On cross-examination, Crown counsel put to IA that when KH said she did not need protection, she meant she did not intend to have sex at his home. He disagreed saying that the way she was acting towards him and what she was saying to him in the car on the way to his home indicated to him that she was fine with having sex without a condom.
The Sexual Encounter at IA’s Home
KH’s Evidence
[34] IA’s home was a bachelor basement apartment with one main living space with a desk, school supplies, a chair as well as a kitchen and sleeping area with a bed. There was a separate bathroom around the corner from the sleeping area.
[35] KH testified they went into the apartment and IA went to the washroom. KH says when he came out, while she was standing behind the couch, IA asked her to remove her jean jacket. KH stated that she told him it was cold and she did not want to do that. She refused his offer to turn the heat up. She said he then moved toward her and kissed her on the mouth. KH testified that she said and did nothing in response. On cross-examination, KH agreed with the suggestion that she did not mind him kissing her. She testified she did kiss him back but only because he kissed her and she said she did not want to.
[36] KH testified that next IA “brought me to his bed.” She explained she meant he held her hand and “walked me to his bed.” On cross-examination, defence counsel put to KH that IA’s action in moving her to the bed was “a soft move”, that he “gently moved her to the bed”, and that there was “no pushing or anything unusual”. KH agreed that IA did not “irritate” her. She agreed that IA did not make any forceful moves.
[37] KH said she then sat on the edge of his bed with her feet on the floor. IA was standing on the floor in front of her. KH said IA then asked her if she “had ever done anal before” to which she said, “No”. She said he then pulled down his pants and underwear, dropping them to his ankles, and asked her to suck his penis. KH testified that she refused saying, “No”. According to KH, IA then grabbed her head and started pushing it down to his penis. She testified that she then put her hands on his hips to push herself back away from his penis. She does not recall if they said anything to each other at this time.
[38] KH testified that after about one minute, IA started pulling off her jean jacket. He took it off and threw it aside. She said she does not recall whether she said anything to him at the time. She said she did nothing after he did that but said she did not want him to take her jacket off. KH testified IA then took off his shirt and “ushered her further back on the bed.”
[39] KH said she was still seated and he was between her legs on his knees and coming onto the bed as she was moving back. Her evidence is that he pushed her back by her shoulders onto the bed and pulled down the top of her strapless dress to her stomach. KH testified she did not recall what she said to IA. She said she did nothing in reaction to this. She stated that she does not recall if IA said anything to her.
[40] KH testified she leaned forward to sit up and he put his hands behind her back and undid her bra. She said she was not trying to help him remove the bra. She was trying to sit up because she knew he was trying to have sex with her which she testified she did not want. IA eventually unlatched and took off her bra, and she said, threw it on the floor. KH does not remember if she said anything to him.
[41] KH stated that IA’s next move was to turn her over onto her stomach while he was on the bed behind her. He started rubbing her bare back and telling her to relax. She said she told him to stop but he did not stop. She tried to get up but he kept pushing her down.
[42] On cross-examination, defence counsel put to KH that IA did not push her forcefully. Defence counsel also suggested that at that moment she did not ask him to stop pushing her on the bed. She responded, “I don’t think so.”
[43] KH testified, regarding anal sex, that a couple of times he said he was not going to do anything right now. KH stated that she told him, “I don’t want you to do anything at all” and told him she wanted to get up. He then put his hand under her dress and started pulling down her underwear. She said she could not get up. She testified she struggled to keep her underwear on but he managed to pull them down and off. KH testified she told him to let go. She does not recall if he said anything to her.
[44] KH testified IA then turned her over onto her back. He was between her legs and held her legs open with his legs. She stated that he moved close to her and using his hand began examining her vagina. She asked him what he was doing and he said he was just looking. She said, “Looking for what”, and she did not recall what he said after that. KH did not recall if she did anything or said anything else to him but she said she did not want him to examine her vagina. KH testified that activity by IA lasted continuousy for “about one minute or so.” On cross-examination, defence counsel asked KH whether during that one minute she asked him to stop touching her vagina. Her answer was, “I don’t think so.”
[45] KH testified she put her hands on his stomach and tried to push him away so he would not penetrate her. But he continued to move closer and penetrated her with his penis. He was not wearing a condom. KH testified she started to cry because it was very painful.
[46] KH testified she started to move her legs to get him to stop and he told her to stop doing that because that was making it more painful. She said he removed his penis, told her to relax and penetrated her again. She was trying to push him off, tried to get up and she said he pushed her back down. KH testified IA then got off the bed and went around the corner to the bathroom. She said she then sat up and moved to the edge of the bed. He then came back after a couple of seconds with a towel to wipe himself because he was sweating.
[47] KH testified IA came back to the bed, stood in front of her, took her right leg and placed it on top of his shoulder. He held her left leg down with his right leg. She said he held her right leg to his shoulder and put his penis into her vagina for about a minute. She said she does not recall if they said anything to each other at the time. She testified she did nothing when IA did this. She stated that IA removed his penis and then took both of her legs and placed them on his shoulders which she testified she did not want him to do.
[48] KH testified that with both of her legs on his shoulders he moved closer towards her and attempted to put his penis in her “butt”. She said she, “I kinda pushed back with my legs to move away from him. I ended up scooting back a bit.” She said she did not want him to do this. In answer to the question whether IA succeeded in putting his penis in her butt, she responded, “I’m not sure.”
[49] KH’s evidence is that IA next turned her over on her back and put his penis in her vagina. She said he was “humping”, “thrusting” his penis into her vagina for a couple of minutes. She said she did not want that to happen. She said she does not recall if she said anything to him, or him to her, when this was occurring. It is her evidence that he ejaculated on her back after that. He told her not to move and got off the bed and retrieved a towel and went back and wiped her back.
[50] KH testified that the encounter ended when he got up and went around the corner to the bathroom and put on his clothes. KH got up and looked for her bra and underwear and put them on. She said when IA came out of the bathroom she asked if she could use the bathroom. She went into the bathroom for a couple of minutes to get herself together. When she came out IA asked her if he could drop her off home. She asked if instead he could take her to her friend’s place which was near his home. She got her jean jacket and they got into his car to leave.
[51] In answer to how she felt when she left his home, she said she felt “shock.” When asked what she expected when she went with him to his home, she answered that she expected to watch a movie and that she would have to leave half-way since she had to be home. KH said she never said she wanted to have sex with IA. She insisted that she did not want to have sex.
[52] KH testified that IA asked her if she was “okay”. She said, “Yes.” She testified that when she said that, he asked if he had done anything wrong to which she responded, “No.” KH stated that when she got to her friend’s home, as she was getting out of the car, they shook hands. In answer to the question as to why she did not tell IA she was not alright when he asked, KH responded, “Because I didn’t know what he would do. I didn’t know how he would react if he thought he was wrong and I wasn’t okay.” KH went on to say she had “a little bit of concern” that he might hit her.
IA’s Evidence
[53] Similar to KH, IA testified he went to the washroom when they first arrived at his apartment. From this point in the evidence and onward important aspects of the sexual encounter depart greatly.
[54] IA testified that when he came out of the bathroom he approached KH in the living room area. He said she turned to him, looked into his eyes for a brief moment, embraced him and started kissing him. For one or two seconds while standing in the living room area they started “kissing passionately” and touching each other’s private parts with their hands. He testified that as this was taking place, he undid his belt and pulled down his pants a bit. They then “moved” towards the bed.
[55] IA stated that after he undid his belt, KH held his genitals and started to rub them. They then got onto the bed. She was underneath him. He said her dress had moved up around her stomach and his belt was undone. They were caressing each other’s genitals and he then penetrated her vagina with his hand for two or three seconds. IA described what followed was a “small vaginal intercourse” because he had to remove his pants. Crown counsel put to IA that he did not get KH’s verbal consent to caress her private parts. He agreed and said it was mutual activity and she did not ask him for his consent either.
[56] IA then went over to the living room area to the computer table to take off his pants while KH remained on the bed. Contrary to KH’s evidence, when they first got to the bed, he did not push her head toward his penis as KH sat on the edge of the bed. IA testified KH sat up on the bed with her legs extended in front of her. Also contrary to KH’s evidence, IA asked her if she would like to take off her jacket. He did not force it off as KH testified. KH took off her jacket and he helped her with this. Also contrary to KH’s evidence, IA said he did not toss the jacket aside, he took it over to the chair near the computer.
[57] IA testified that he went back onto the bed, he took off her bra and panties and he was moving toward further intercourse and KH said, “Can you please go a little slow?”, to which he replied, “Okay”. IA said KH was underneath him and he was between her legs and she was laughing out loud. She was laughing while he took off her bra and panties. He said she lifted her shoulders to create space for him to remove her bra. He said KH did not say or do anything when he did this. Contrary to KH’s evidence, IA stated that he placed the bra on the bedside table and placed the panties on the edge of the bed. He did not throw them on the floor.
[58] IA testified they were kissing and having intercourse for four or five minutes. Neither of them said anything during this encounter. IA stated that he again left the bed to take off his t-shirt. Similar to KH’s evidence, IA said he went to the kitchen area and retrieved some paper towels and wiped himself with a regular towel. While he was away from the bed KH remained face up on her back on the bed. He walked toward the bed and asked KH, “Would you like to do it from behind” to which she replied, “I have never tried it before. I don’t know.”
[59] Contrary to KH’s evidence, which was that she was not sure if IA performed anal intercourse, IA testified, “We had an intercourse from behind.” During this act, he said he was positioned standing at the side of the bed in front of KH and she was on the bed. She moved closer to him with her legs raised up in the air when he inserted his penis. This lasted less than a minute. IA testified neither of them said anything to each other.
[60] On cross-examination, Crown counsel posed to IA that it was only in regard to the anal sex act that he asked KH whether she wanted to do something. He agreed. Crown counsel put to him that KH did not consent to anal sex and actually said she did not know if she wanted to do that. IA repeated that she did not answer verbally but her actions made him feel she wanted to do that.
[61] IA said they next had vaginal intercourse from the front for one or two minutes while KH’s legs were in the air. He described this as very passionate and consensual. He said he ejaculated that time and some of the sperm got on her back. He said he went to the kitchen again for about a minute to get paper towels to wipe KH’s back. KH said nothing at this time. Similar to KH’s evidence, IA said he then went to the washroom and when he came out, she entered the washroom. He then went back into the washroom to clean up.
[62] IA testified that when he came out of the washroom KH was texting someone. When he asked about this, she told him she was texting a friend. Similar to KH’s evidence, IA said he asked her if he was going drive her home to which she asked whether he could drive her to her friend’s house. He agreed to do so and she said her mother would pick her up at her friend’s. IA described KH’s mood as “quite happy and relaxed”. He testified it was between 8:20 and 8:30 pm when they left his apartment.
[63] IA testified the drive to the friend’s home was about 15 minutes. He said they had a discussion on the way. He asked why her mother was late calling her. They also talked about a plan to go to a movie the next day. The plan they made was that after he finished class at 6:20 pm on Monday, the next day, they could go to the movies.
[64] Similar to KH’s evidence, IA testified that before she got out of his car KH shook his hand. He told her he would call her at 6:20 pm on Monday and they could go to the movie on Progress Rd. as they had planned. IA never saw or spoke to KH after that.
At KH’s Friend’s Home
[65] AS has been a best friend of KH’s for six years. KH testified that when AS asked if she was alright, she told her “I think I was raped.”
[66] KH testified she was crying when she went into the home. AS described KH as “mostly upset crying a little bit.” They went to AS’s bedroom and KH told her some of what happened. AS called her mother into the bedroom and they told her what happened. AS’s mother called the police and two officers came to the home and took KH to the hospital. She was subsequently taken to the police station on September 17th to give a video statement. She returned on September 21st to give a further video statement.
Analysis
[67] Credibility is clearly the central issue to be determined. As averted to earlier, various Supreme Court of Canada decisions offer general instruction on credibility and guidance on that issue as it arises in sexual assault cases. R. v. W.(D.) and R. v. Morin set down provided the following:
- Where the accused testifies and credibility is an important issue, the Crown’s burden of proving guilt beyond a reasonable doubt must be applied to the issue of credibility.
- The trier of fact is not required to wholly believe one witness or one set of witnesses. The trier can believe all, some or none of any witness’s evidence.
- The accused must be acquitted if, considering the evidence on a whole, the trier of fact believes the accused’s evidence.
- Even if the trier of fact does not believe the accused’s evidence but has a reasonable doubt as to the accused’s guilt, after considering his evidence in the context of the evidence as a whole, the accused must be acquitted.
- In addition to favourable evidence by the accused and the defence witnesses, the trier of fact must also consider any exculpatory evidence that might arise in the Crown’s evidence.
- The Crown is not required to prove or disprove every fact beyond a reasonable doubt. The analysis is not to be applied piecemeal to every item or category of evidence unless the fact is an element of an offence or a defence: R. v. Morin, [1988] 2 S.C.R. 345.
- The burden always rests with the Crown to prove the guilt of the offence charged beyond a reasonable doubt, and if a defence is raised, the Crown’s burden is to negative the defence beyond a reasonable doubt. R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 409.
[68] Those principles are top of mind as I analyze the body evidence before the court.
The Elements of Sexual Assault
[69] The Supreme Court of Canada in R. v. Ewanchuk defines the actus reus of sexual assault. The actus reus of sexual assault is established by the proof of three elements: (a) touching, (b) the sexual nature of the contact, and (c) the absence of consent. The first two elements are objective. To prove the first element it is sufficient for the Crown to prove that the accused’s actions were voluntary. The second element is also proved by objective evidence. The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25.
[70] The third element, consent, is proven by subjective evidence. Consent is defined in s. 273.1 of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. The provision lists various situations where consent is deemed to be absent.
[71] The required mens rea or mental state of the offence is established if the accused either knew that the complainant was not consenting to the sexual activity or was reckless or wilfully blind to the absence of consent: R. v. J.A., [2011] 2 S.C.R. 440, 2011 SCC 28, at para. 24. Consent requires the conscious agreement of the complainant to engage in every sexual act in a particular encounter: R. v. J.A., at para. 31. It is the Crown’s burden to disprove consent. Ewanchuk provides useful direction:
While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
R. v. Ewanchuk, at paras. 29 and 30.
Application of Principles
[72] I find IA was not shaken in any material way on cross-examination. He underwent very intense cross-examination by Crown counsel and his evidence remained steady and consistent. On the whole I accept his evidence about what occurred before during and after the sexual encounter. Nothing in his and KH’s evidence raised a reasonable doubt about the absence of guilt.
[73] IA and KH gave differing accounts of what occurred at Tim Horton’s, at the park and at his home. When I consider their evidence in the total context of the evidence before the court, I find IA’s evidence to be credible and reliable. I accept his evidence about his interactions with KH in each of the locations. Most importantly, I accept as credible and reliable his account of the sexual encounter at his apartment.
[74] The first two elements of sexual assault have been met. There is no issue that IA’s actions were voluntary at all times and that the nature of his encounters with KH was sexual. What is left to establish is whether there was an absence of consent and this is the task of the Crown to prove.
[75] I find the Crown has not succeeded in disproving consent beyond a reasonable doubt. I conclude it was reasonable on all the facts for IA to conclude from KH’s conduct at Tim Horton’s and at the park that KH was consenting to go to his home to have sex. It was reasonable for IA to conclude that KH consented to each aspect of the sexual encounter at the apartment. In sum, it was reasonable based on KH’s actions before, during and after the encounter for IA to believe that KH agreed in advance and during the encounter to have sex and that she went on in retrospect to accept the sexual encounter they had engaged in.
[76] In looking at the question of KH’s consent, I must look to her actions, inaction, her words and absence of words when the sexual activity was occurring assessed in the context of what led up to the encounter. I must make it clear that no singular piece of evidence or incident was sufficient for me to arrive at my determination. It is in the accumulation of the facts and incidents in the context of all the evidence that I find the basis for finding inconsistency between KH’s denial of consent and her words and conduct. The totality of KH’s conduct is inconsistent with her claim of non-consent.
[77] Although I am inclined to accept IA’s account of the sexual encounters, I find even if I accept KH’s account, I arrive at the same conclusion on consent. That is to say, I would also find she consented to the activities she described in her account.
[78] I start with KH’s evidence on the Badoo App. The first evidence she gave was that she knew it was a dating App. But she later changed her evidence to say she did not know what the site was about. In the context of other evidence, I do not accept KH’s evidence that she did not know the purpose of the site. The exchange of texts following meeting on the App and the setting up of a date for coffee, leads me to believe she was not truthful when she said she did not know the purpose of the site.
[79] KH and IA spent about two hours at Tim Horton’s. That is a long time in a coffee shop. However, KH gave little evidence about what happened between them there. I feel that KH was leaving out information that perhaps contradicts her allegations. All KH said they did was talk about their backgrounds, education and employment. I believe they spoke of much more than that. In the larger context of the more intimate movements they engaged in after Tim Hortons’ at the park, in the car and at IA’s apartment, I find, IA’s evidence about what happened at Tim Horton’s makes sense.
[80] IA’s evidence is that he spoke about the type of relationship he wanted and asked her what she expected. He said she asked many times about going to his home to watch a movie. He declined that request each time and told her he would not allow that on a first date. He saw KH’s request as a pretext to get to his apartment to have sex. I believe IA told her he would take her home to her mother and I believe that KH told him she had to be home at 7:00 pm. KH’s evidence was ambiguous on the time she was expected to be at home.
[81] IA’s view that KH was seeking to have sex was based on his observation of her behaviour and the fact she said she likes him. He said her body language and the personal questions she was asking him led him to that conclusion. I believe based on all that ensued between them that it was KH’s suggestion they go to a park where they could be alone. This would reasonably suggest a desire to be in a more intimate space with IA if they chose a secluded area.
[82] At the park the sexual intimacy heightened. IA presented a detailed account of what he recalls occurred at the park. His evidence of his and KH’s interactions from my perspective presented as a logical continuation of what happened between them at Tim Horton’s. I accept IA’s account for reasons mentioned earlier. He was vigorously challenged on cross-examination on his narrative and, in my observation, he did not move in any material way from what he said in-chief. Moreover, he did not try to paint himself as a passive party. He admitted to kissing and hugging KH and to touching her private parts. But his evidence was that the interactions were mutual, reciprocated by KH.
[83] I accept that evidence. I am fortified in that view by the fact there was no evidence of any demonstrative resistance to IA’s actions and no evidence of force by IA. KH gave no evidence of words she spoke to display her disagreement. She testified that he took her hand and placed it under her dress on her vagina and that she took his hand from under her dress. However, I have grave doubts as to whether IA did this.
[84] IA freely admitted to touching KH’s private parts but not to putting his hand under her dress. KH’s evidence on this came out for the first time at trial. She did not tell the police about this in either statement and did not mention this in the preliminary inquiry. Further, I do not accept that IA took KH’s hand and placed it on his private parts. I accept IA’s evidence that this activity was voluntary and mutual.
[85] Further, at trial KH testified IA kissed her on the way to the car when they were leaving the park. She agreed she did not tell the police that. She gave what I find to be ambiguous evidence as to whether she kissed him back and as to whether she wanted him to kiss her. At first, she said she believed she kissed him back and later said she did not kiss him back.
[86] The evidence KH failed to report and testify to before trial I find is evidence important to her allegations against IA. It is not reasonable that she would neglect to tell the police about this during her interviews on the very day of the incident and in her second interview two days later. It is not likely that if these things occurred that this would not come to her mind at the preliminary inquiry while testifying under oath. In my assessment this adversely impacts KH’s credibility.
[87] KH gave inconsistent evidence about whether she understood IA was intending to have sex when they went to his home. This evidence came up in relation to IA’s question about whether she had protection and his suggestion that he would go to a store to buy condoms. KH responded, “That’s fine.” KH first said she understood from that question that IA wanted to have sex at his home. Later under cross-examination she said she did not understand he expected to have sex. She said she thought they were going to his home and would have time to watch part of a movie.
[88] I believe IA’s evidence that KH persisted in asking to go to his home to watch a movie. I believe IA emphasized that they would not be going to the apartment to watch movies. I believe the first version of KH’s evidence that she understood that IA expected to have sex if they went to his apartment. I believe IA offered to take her home because when they left the park it was 7:00 pm, the time I accept is the time she told IA she had to be home.
[89] KH declined the offer to go home and opted to go to IA’s place, as I found, knowing that IA was intending to have sex. I find it not unreasonable based on KH’s words and actions that IA would believe that KH was consenting to going to his apartment to have sex.
[90] As I found earlier, IA and KH gave two different accounts of the nature of the sexual activity at the apartment. KH alleges IA engaged in a number of sexual acts on her against her will. He did not deny having a variety of sexual interactions with KH but insisted she never gave him any indication that she did not consent to each act. Her conduct belied an absence of consent.
[91] Both of their accounts involve evidence of the removal of KH’s clothes and various acts of vaginal intercourse. KH alleges IA forced her to give him oral sex and without her consent examined and touched her vagina. These acts are not part of IA’s account. But what IA does admit is that he engaged in anal sex with her. I find KH was evasive when asked about this. She said she does not know whether IA inserted his penis into her anus. I think it is not reasonable to believe that KH would not know this had happened, that she would not feel this happen, particularly given the invasiveness of that act and with her evidence that she had not done that before. I believe she was just reluctant to admit that she consented to this.
[92] IA says he did engage in anal sex and KH did not resist or say anything to stop him. His evidence is that by her actions she consented to this. Anal sex is less conventional to many and more invasive and capable of drawing more scorn than other forms of sexual activity if done without consent. It was unconventional for KH. At trial IA had heard KH’s evidence that she was not certain it happened. So, IA did not have to admit he did this. The fact he did not deny anal sex when he could have, heightens his credibility in my estimation. Furthermore, the difference in IA’s evidence of what happened was not in my estimation an attempt to a minimize the encounter.
[93] I find the general tenor of KH’s conduct at the apartment during the sexual encounter and at Tim Horton’s and the park aligns with how she acted at the apartment. KH went freely to IA’s apartment when he made it clear they would not be watching a movie and that he was expecting to have sex with her. She provided no evidence that he had to force or persuade her to go there. In the same vein, by KH’s actions she acquiesced to how things were proceeding at Tim Horton’s and the park.
[94] I find it not at all unreasonable for IA to believe that KH consented to each aspect of the sexual activity at the apartment. In deciding this I have kept in mind an excerpt for the passage from R. v. Ewanchuk cited above:
The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent.
[95] While KH claims she did not consent to the vaginal intercourse and the examination of her vagina, she either said or did nothing in response or did not recall if she said anything.
[96] On her evidence, there was an occasion, when lying on her back with IA hovering over her, she said she pushed on IA’s stomach so he would not penetrate her vagina. This is the sole area of her evidence when she indicated she tried to resist. But given her general lack of credibility I am not so sure that happened.
[97] There was an occasion when she said vaginal intercourse was painful. But she could not recall what she said or did to resist IA’s movements. That evidence has to be seen in the context of KH’s concession that on the occasions when she said IA took her to the bed and pushed her back onto the bed when she sat up, he did not use force. Her evidence was that there was no aggressive behaviour by IA. I heard no evidence that she feared or was concerned about him.
[98] That evidence I think explains KH’s inaction when she had a chance to show resistance and did not. In both IA’s and KH’s accounts of the sexual encounter there were three instances where IA left the bed, to go to the computer area, to go the kitchen and to the washroom. KH admits she remained lying on the bed. She did not explain why she did not get up. There is no evidence of an attempt by KH to get off of the bed, to get dressed and leave the apartment.
[99] KH’s conduct after the sexual encounter in the apartment also accords with her prior conduct. She again did not attempt to leave the apartment on her own even though her evidence was that she had been raped. Instead, KH freely accepted a ride in IA’s car. He offered to drive her home and she asked him to drive her to her friend’s. There is no evidence that she sought another way to get away. She had access to her cellphone. KH did not attempt to call for help, to call her mother or to call the police. IA’s evidence was that KH was “happy and relaxed” after the encounter. I tend to believe this based on KH’s disposition in the car after they left the apartment.
[100] In the car, IA asked KH if she was “okay” and she said “yes. He asked whether he had done anything wrong and she said, “No.” I do not accept as reasonable her explanation that she did not know how he would react if she said he was wrong and she was not “okay.” Nor do I accept her evidence that she had a “little bit of concern he might hit her” since she conceded he never used any force with her. Moreover, it was the evidence of both KH and IA that they shook hands before KH got out of the car. This was clearly a friendly gesture. IA’s evidence is that he confirmed the plan that they would go to the movie the next day. I believe that happened.
[101] I found KH’s friend AS’s evidence was not of much assistance to KH. Her evidence was not capable of upending the credibility of IA’s evidence nor sufficient to supplement the unpersuasive evidence KH offered. Her description of KH’s demeanor as “mostly upset crying a little bit” went no distance in assisting the Crown with its burden of proof.
[102] In conclusion, I find the Crown did not satisfy its burden to prove IA committed sexual assaults against KH contrary to s. 279 of the Criminal Code. The Crown was not able to disprove consent.
Verdict
[103] I find IA not guilty on count 1, count 2 and count 3 on the indictment and acquittals will be registered accordingly.
B.A. Allen J.