COURT FILE NO.: 8009/19
DATE: 2020-11-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Heidi Mitchell, Counsel for the Crown
- and -
Wayne Chorney, Counsel for the Accused
M. F.
Accused
HEARD: July 27-31 and October 22, 2020
varpio j.
reasons for judgment
OVERVIEW
[1] This case involves allegations of assault and sexual assault committed during a marriage. By all accounts, the marriage was toxic, filled with mistrust and poor behaviour by both parties. The complainant testified that the accused repeatedly assaulted her. She also testified that the accused sexually assaulted her on two occasions: once anally, once vaginally. The accused denied assaulting and sexually assaulting the complainant. According to the accused, the incident of anal sex was consensual and stopped when the complainant indicated that the act was painful. With respect to the incident of alleged vaginal sexual assault, the accused testified that the conduct was consensual.
[2] Upon review of all the evidence, I am left in a state of reasonable doubt with respect to the charges before the court. The complainant’s evidence had aspects that substantially diminished its credibility. On the other hand, the accused’s evidence was unshaken. I cannot therefore find beyond a reasonable doubt that the sexual conduct that forms the substance of the allegations occurred without the complainant’s consent.
[3] The accused will be found not guilty of the charges before the court.
THE EVIDENCE
The Complainant
Examination-in-Chief
[4] The complainant testified that she is in her early 20’s and that she was born in the Punjab. She came to Canada to study at Sault College in approximately 2016. While at school, she worked at a call centre where she met the accused. He is approximately 10 years older than she is. In February of 2017, she and the accused began a relationship. At that time, the complainant became nervous that her family would visit her in Canada. The complainant worried that if she were in a relationship with a man, the family would cease to support her financially. She testified that she felt that she needed to marry the accused in order to assuage familial concerns:
He [the accused] knew that in our culture it’s usually, if marriage is a right way, you should not be living in a relationship.
[5] She and the accused first discussed marriage in April 2017 and got a marriage license in June 2017. They were married on July 1st, 2017. The couple did not tell the accused’s family about the marriage. Ultimately, his family found out because the complainant would wear her marriage bands around them.
[6] The couple did not live together during the marriage, although the rationale for this physical separation was not made clear to me.
[7] The complainant’s father visited the couple in September or October of 2017 and stayed in a motel on Great Northern Road. The visit went well and the father gave the couple money prior to his departure from Canada.
[8] During the marriage, the accused would play video games with his friends, would smoke cigarettes and marijuana and would drink alcohol. The complainant indicated in examination-in-chief that she tried to get the accused to improve his personal habits.
[9] The complainant testified that the accused’s behaviour worsened after they were married. The accused forced the complainant to undertake unhealthy habits like smoking. He was aggressive with her. In fact, she testified in a fashion that made it appear that the accused committed multiple anal sexual assaults during the relationship:
Q. So, [name of complainant], what if any other habits did you notice changed about [the accused] once you got married?
A. Telling me to do stuff which I did not want to do. And like – or not – like I was sometimes wondering, oh, where are you after work. Like he would sometimes go to at his co-workers’ place for like four or five hours and stuff like that. Before marriage, he was come home after work, like usually come home after work, and after that try to hang out with someone. But after marriage, he tried to – and got off at work, like he would not come after work at home and force me to smoke, force me to have sex.
Q. So, let’s talk about that. When was the first time he forced you to have sex?
A. I don’t exactly remember, but I remember it was after marriage. And mostly anal sex, and like if I tried to say no, I don’t feel like I want to do it, or that oh it is hurting or something, he would just hold me.
[10] The complainant was asked by Crown counsel to describe the sexual assault allegation involving anal sex. The complainant indicated that she could not remember with certainty when this incident occurred but that it probably occurred in the winter. The complainant testified that the couple went to a grocery store to purchase lubricant for anal sex. She believes that the incident occurred at night since the medical section of the grocery store was closed. The complainant and the accused were unable to purchase said lubricant and returned to the accused’s father’s apartment where the accused was staying.
[11] The complainant testified that when the couple entered the accused’s bedroom, the accused laid the complainant on her side and held her arms behind her back. He told the complainant that he wanted to have anal sex. He began penetrating her anus with his penis. She did not consent. She testified that she remembered facing his computer while lying on the bed.
[12] She told the accused that the act was hurtful and to stop the sexual conduct. She said, “Hey, it’s rape, to stop it” at which point he stopped. The complainant testified that the accused stated, “if you’re not doing this with me, then oh, I have to find someone else or I do – something like that”.
[13] When asked if she suffered any injuries from this interaction, she testified as follows:
Q. Okay. And you said that it was hurting you?
A. Yes.
Q. Okay. Did you sustain any injuries as a result?
A. I was usually – I had bleeding ‘cause of it.
Q. And when did that happen?
A. Just right after every time he tried to have…
Q. Okay.
A. … anal sex.
[14] The complainant indicated that she did not tell anyone what had happened because she believed that people would ask her questions about her marriage. She testified that she did not want to discuss these issues and as a result did not disclose anything to anyone.
[15] The complainant then described the nature of the continuing relationship. The accused verbally abused the complainant by calling her names. The accused would play video games and, if confronted by the complainant about same, the accused would assault the complainant. She described incidents where the accused punched the complainant in the stomach so hard she could not breathe, slapped her in the face, stabbed her hand with a vaporizer and kicked her off the bed causing her to fall on metal chair legs. The complainant testified about these instances in considerable detail.
[16] The complainant testified that the accused was heavier during their marriage than he was at trial. During the marriage, she estimated that he weighed more than 200 lbs. while she weighed less than 90 lbs.
[17] The complainant was asked about any further incidents of sexual assault and testified as follows:
Q. So, [name of complainant], you described an incident where [the accused] forced you to have anal intercourse…
A. Mm-hmm.
Q. … after marriage, and then you’ve described some of the assaults as well. Was there any other time that he forced you to have sex?
A. So, I think couple few times the anal sex, and then when I grabbed all my stuff from his place and my place on [address], and then one day he messaged me that I want to talk, I miss you and this and that. Then I told him that you – that yes, you can talk. And he’s – he went to my place and is in my room, that time he tried to have forcefully sex with me, but it was not anal, it was vaginal.
[18] The complainant’s evidence reproduced in these reasons suggests that there were multiple instances of anal intercourse. The complainant was not, however, asked how many times anal sex occurred during the marriage, either consensually or non-consensually.
[19] The complainant was then asked to narrow the timeframe where the vaginal sexual assault occurred. She indicated that she was trying to separate from the accused because of his personal habits on or about March 17/18, 2018. He went to her apartment that night. He had been trying to change his habits. They discussed ending the relationship. He tried kissing her. She told the accused that she did not want to kiss. She testified that she does not remember much. He grabbed her arms. She told the accused that she did not want to have sex. She was in her bedroom. Her face was down on the mattress and she could not move. He was on top of her. Her face was covered. She cannot remember if he used a condom. He forced her to have vaginal sex with him. He stayed over that night and she fell asleep. She did not consent.
[20] She woke up the next morning and the accused was penetrating her vagina. She was lying down on her side and he was having sex with her. She could not remember if he ejaculated. He got his clothes on and left the apartment. Again, she did not consent to this activity.
[21] She saw a counsellor in the days after the March 17/18, 2018 incident and went to the police shortly thereafter.
Cross-Examination
[22] In cross-examination, the complainant was directed to alleged inconsistencies in her testimony. She admitted that, in two different police statements and at the preliminary hearing, she failed to disclose the fact that she suffered anal bleeding as a result of the alleged forced anal intercourse. She admitted that she had not disclosed any sexual assault in her first police interview. She also admitted that she had not at any time disclosed the incidents involving the stab to the hand, the punch to the stomach or the fact that she fell on the metal chair legs. She also indicated that, prior to trial, she disclosed only one instance of anal sex.
[23] As regards her failure to disclose the assault allegations, the complainant agreed that she was not rushed during her first interview and that the police officer had asked her if there was anything that she wished to add to her evidence. When confronted with her inability to recall the physical assault allegations in question, the complainant testified:
… sometimes you talk with someone and you forget some things, or you think about other things after that… [a]t that time, I guess I did not remember or I couldn’t think of that I should tell or…
[24] Defence counsel asked the following question of the complainant:
It would seem to me that if my husband or my wife punched me in the stomach to the point where I lost my breath, it would seem to me that if my wife stabbed my hand with a vaporizer, or it would seem to me that if someone forced their penis into my bum, I would remember that because those are traumatic experiences, but yet, you didn’t tell the police officer about those three things in the first interview. I don’t know why you wouldn’t remember.
[25] The complainant answered as follows:
I don’t know like how I was feeling at that time. Maybe I was feeling like that – like embarrassed or something that I don’t want to tell them, or how I should start or something, then I try to talk with the counsellor then they told me that did you told these things to the police, and I told them no, then they was like did you want to tell them.
[26] The complainant explained that she re-attended the police station after meeting with a counsellor and that, in the second meeting, she disclosed the allegations of sexual assault. When asked why she did not disclose the other allegations of assault at the second police meeting, the complainant testified that her primary purpose in attending the second interview was to discuss the sexual assault allegations.
[27] The complainant explained her failure to disclose anal bleeding as follows:
Because I did not thought of that. I could not think of that. Like, sometimes you can’t think of some things. She [the Crown] asked me like if you was injured then I thought of that, that, yes, I was. Like when she asked me that was you injured or was there any injury after anal sex, then I thought of that. If she was not going to ask, I don’t think so I was going to remember.
[28] The complainant confirmed that she testified at the preliminary hearing and did not mention any of the aforementioned physical assaults or the anal bleeding.
[29] The complainant denied being jealous of the accused during the marriage. She did admit, however, that there were incidents involving the accused at Canadian Tire and other stores where the couple fought with each other as a result of females serving the accused. The complainant could not, however, remember what exactly caused the friction.
[30] The complainant denied that there was a rush to get married. However, she testified that “I explained him the situation, like I told you before, that my family and everything, and he told me that, okay I understand, I will marry you. And he rushed the marriage, like he decided to marry within three days of when we bought the rings.” The complainant was pressed on this issue. She indicated that the marriage was somehow related to a U.S. Visa issue involving the accused’s friend in the United States. Ultimately, the complainant indicated that “I married him so that my dad can support me and I wanted to be with him. I did not want my family to stop supporting me so that at the end I was going to end up not studying here or working or being with him”.
[31] The complainant denied that securing an immigration Visa played any role in getting married. I have no evidence that marriage would have affected her immigration status in any way.
[32] She admitted that his friends did not want them to get married. The accused’s best friend at the time did not attend the ceremony.
[33] The complainant was confronted with the notion that she did not tell her family about the marriage until after the wedding date. She was unclear as to exactly whom she told about the marriage and on what date.
[34] The complainant testified that she pressured the accused in April of 2017 to get his taxes finished so that he could stop creditors from pestering him.
[35] The complainant admitted that, in October 2017, she asked the accused if she could read his phone messages:
A. The one time I asked him that, hey, [accused], can I read your messages. That was the night time, I’m not sure if it’s the same question, and he told me, yes, you can. And I asked him, like can I ready [sic] any of the messages, and he told me yes.
Q. Why did you need to look at his messages?
A. Because I had some cautions.
[36] When asked about the “cautions”, the complainant indicated that she was concerned about both male and female friends the accused was seeing. She had lost trust in the accused:
I lost the trust ‘cause of the same reasons, like one time he told me I’m going to work, he did not go to work, he went to his apartment, back, and was playing video games and he was thinking of going to bar with his friends. And that type of reason, he kind of lied to me, and I caught him lying.
[37] The complainant later appeared to indicate that they both looked through each other’s phones, although her evidence on this point was unclear.
[38] The complainant was then confronted with situations where she allegedly became very angry, jealous and suspicious of the accused. The complainant indicated that she did not remember those occasions and, accordingly, she believes that they did not happen. In one instance, however, defence counsel put to the complainant that the complainant was so angry and out of control that she blocked the accused’s exit from an elevator and stood in front of his car, stopping him from driving away. The complainant denied blocking the accused’s exit from the elevator but appeared to indicate that she may have blocked the car’s passage. Ultimately, she testified that this incident may have happened as was described by defence counsel.
[39] The complainant denied butting a cigarette out on the accused’s forearm in anger.
[40] The complainant denied ever calling the accused “Down’s Syndrome Boy” as a result of his physical appearance but agreed that she called him a liar on several occasions. She also agreed that she may have told him to “f**k off” on multiple occasions and that the accused did likewise to her. She also indicated that the accused made racial slights towards her.
[41] The complainant denied an allegation that, during Christmas of 2017, she got drunk with the accused’s sisters (one of whose names she could not remember) and began making fun of the accused’s bowel issues, from which he apparently suffers.
[42] With respect to the two counts of sexual assault, the complainant denied the accused’s version of events. She indicated that during the March 17/18, 2018 incidents, he did not ejaculate inside her but, rather, he ejaculated on toilet paper because she did not want to get pregnant. Defence counsel asked the complainant why she did not leave the relationship since she had other places to stay. Counsel also asked her how it was possible that she fell asleep on the night of March 17/18, 2018 given the trauma associated with the alleged event.[^1]
The Accused
Examination-in-Chief
[43] The accused testified that he met the complainant on February 4, 2017 when he was a supervisor at a call centre. She was working as a technician/chat agent. The accused currently works in construction and has no criminal record.
[44] He liked the complainant and asked her out on a date. They drove around St. Joseph’s Island and he started to tell her about himself. They became a couple around Valentine’s Day 2017. By April 2017, the issue of marriage came up. She proposed that they get married and he initially said no, indicating that he was opposed to the institution because he had seen what it had done to his parents. He began to warm up to the idea and spoke with his friends about getting married. They were opposed because they believed that the complainant only wanted a “green card”. The accused ultimately agreed to marry the complainant. The accused’s best friend refused to attend the July 1, 2017 wedding. Other than a misunderstanding on Valentine’s Day 2017, the couple’s relationship was strong leading up to marriage.
[45] The couple went on a honeymoon near Wawa, Ontario. After returning from the honeymoon, the relationship began to change as the complainant became more and more jealous. She was jealous of female coworkers, female store attendants, and others.
[46] The accused began to believe that the complainant would go through his phone to block and/or delete messages since his friends advised him that messages were not getting through to him.
[47] The accused also testified that there was an incident where the complainant caught him looking at her roommate’s buttocks. She was upset such that she slapped the accused. The accused also described other incidents where the complainant was the alleged physical aggressor including an incident where she got angry with him and blocked his exit from an elevator at his apartment building. She then stood in front of his car and did not let him drive past. He also described an incident where the complainant put a cigarette out on the accused’s forearm. The accused offered to show the court the scar, but he was not ultimately asked so to do.
[48] The accused denied being violent with the complainant at any time. He denied stabbing her with a vaporizer, punching her in the stomach and denied the other incidents that form the subject-matter of the assault allegation.
[49] The accused testified that at the time of the marriage, he was considerably heavier than he is today. He used to weigh 240 lbs. He currently weighs approximately 175 lbs. He indicated that his self-esteem was low which was why he would allow the complainant to be verbally and physically aggressive with him. The accused testified that she referred to him as “Down Syndrome Boy” as a result of his appearance and that she would swear at him a considerable amount of the time. He also alleged that the complainant made light of his digestive issues at a family Christmas party.
[50] With respect to his tax returns, the accused stated that the complainant was aggressive in pursuing the tax issue because the accused’s taxes needed to be resolved in order for the complainant’s immigration issues to move forward. He was of the opinion that the marriage would assist her with immigration issues but provided no basis for that belief.
[51] The accused denied forcing the complainant to smoke anything. He denied ever assaulting the complainant. He also denied ever forcing her to have vaginal or anal sex. With respect to the anal sex allegation, the accused testified that the couple went out one night to purchase lubricant, but the store section where lubricant was in stock was closed. Accordingly, the couple waited for another occasion when the accused had lubricant. The accused testified that it was a consensual episode whereby the accused had already purchased lubricant at a store, a red lubricant for “hot and cold” sensations and a blue one for “tingly” sensations. Given his weight, the couple agreed that they should try anal sex with the complainant on top to avoid any possibility of injuring her. Once she indicated that the act hurt her, they stopped immediately. The accused went to the washroom to clean fecal matter off his penis.
[52] At some point in early March 2018, the couple separated. Around that time, the accused’s father (with whom he had been living) told the accused to leave the apartment because the father felt that the accused was taking advantage of him. This hurt the accused and, on the night of March 17/18, 2018, he went to the complainant’s residence for emotional support. They argued and began a two-hour conversation focusing on reconciliation. He agreed to change his behaviour including giving up cigarettes. They were in her bedroom when, after deciding to reconcile, he was lying down beside her. He wanted to have “make-up sex”. He took off his pants and underwear and got under the covers. She took off her pants and was wearing a T-shirt and underwear. She got into bed. He laid behind her. They began to cuddle and watch Netflix on a laptop. He kissed her on the back of the neck. She did not tell the accused to stop kissing her:
So, then I began kissing her, thinking everything was okay. I attempted to put my penis inside her vagina all but like 15 seconds, and then she said no.
[53] The accused testified that he pulled the complainant’s underwear to the side before penetrating her. The accused testified that the complainant remained quiet and said nothing. The accused penetrated her, and as soon as she said “no”, he withdrew. He did not wear a condom.
[54] After he withdrew, he put on his boxer shorts, got a cigarette and went outside. The complainant came to the door. They ultimately fell asleep on the twin-sized bed.
[55] The next morning, the accused’s alarm went off. The complainant began being sexually aggressive towards the accused. The accused indicated that he did not want to have sex and thus be late for work. The complainant indicated that, if the accused “wanted drama” then he could leave. The accused testified that he “reluctantly” agreed to have sex, ejaculated, got changed and then went to work. The sexual encounter was consensual.
[56] A few days later, the accused placed a deposit on an apartment where the couple could live. The police became involved shortly thereafter.
Cross-Examination
[57] The cross-examination of the accused was brief.
[58] The Crown recommitted the accused to his version of events as regards the March 17/18, 2018 incident.
[59] The accused acknowledged that during the marriage he had a lot of bad habits including smoking cigarettes, playing video games and looking at other women.
[60] The accused admitted that, at the beginning of the relationship, he asked the complainant if he could look at her phone because he did not trust her.
[61] The accused denied that the complainant was reliant upon the accused despite her language issues. The accused indicated that the complainant had more money than he did.
POSITION OF THE PARTIES
[62] The Crown submitted that the accused ought to be found guilty of all counts before the court because the complainant was a credible witness. During the marriage, she was overborne by the accused. While the Crown agreed that the relationship was toxic, the Crown submitted that the accused engaged in forcible sexual conduct with the complainant and assaulted her on several occasions. Despite the fact that the accused was unshaken on cross-examination, I should accept the complainant’s version of events given the strength of her evidence.
[63] In the alternative, the Crown submitted that the accused’s own evidence is effectively a confession that a sexual assault occurred on the night of March 17/18, 2018. I should convict him as a result of same. The Crown further submitted that the accused’s testimony that the complainant said nothing prior to sexual activity on the night of March 17, 2018 corroborates that she did not, in fact, consent.
[64] The accused submitted that the accused’s evidence was much stronger than the complainant’s evidence and that I ought to have a reasonable doubt that the events occurred as was described by the complainant.
[65] The accused submitted that the complainant’s evidence ought to be discounted because of:
a. her poor demeanor in the witness box;
b. her unwillingness to admit that she was an aggressor in the relationship;
c. her unwillingness to admit that she was the driving force behind the marriage and her inability to explain why it was that she would not initially disclose the marriage to the couple’s parents; and
d. her late disclosure of multiple acts of physical assault and anal sexual assault[^2].
[66] The accused denied that his evidence was a confession that a sexual assault occurred on the night of March 17/18, 2018 in so far as the complainant either consented to the conduct or the accused had an honest but mistaken belief in consent. This latter defence must take into account the fact that the accused and the complainant were married at the time of the incident.
THE APPLICABLE LAW
Consent in Sexual Assault Cases – Actus Reus and Mens Rea
Actus Reus
[67] The Supreme Court of Canada in R. v. Barton 2019 SCC 33 reiterated the law is it relates to consent and sexual assault. At paras. 87 to 89, the Court described the role of consent as a part of the actus reus as follows:
A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault "if he touches another person in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the "intention to touch and knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched" (R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).
"Consent" is defined in s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" (J.A., 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 (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., 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, at paras. 55 and 57 (emphasis deleted)).
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37)
[68] The Supreme Court described how the Crown may prove the complainant’s lack of consent as part of the actus reus at paras 29 and 30 of R. v. Ewanchuk, [1999] 1. S.C.R. 333:
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.
[69] I do not believe that Ewanchuk has been overruled by Barton or any other Supreme Court of Canada jurisprudence on this point and, as such, this passage remains good law.
Mens Rea
[70] At para. 90 of Barton, the Supreme Court then described the effect that consent has on the mens rea element of the criminal offence of sexual assault:
For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, "consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" (ibid., at para. 47).
[71] At paras 91 and 92 of that decision, the Court then examined the defence of “honest belief in communicated consent”:
This Court has consistently referred to the relevant defence as being premised on an "honest but mistaken belief in consent" (see e.g., R. v. Esau, 1997 312 (SCC), [1997] 2 S.C.R. 777, at para. 1; Ewanchuk, at para. 43; Darrach, at para. 51; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 57; R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 32; J.A., at para. 24), and the Code itself refers to the accused's "belief in consent" (s. 273.2(b) (heading)). However, this Court's jurisprudence is clear that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct (see R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836, at paras. 39 and 43-44 (per L'Heureux-Dubé J.); Ewanchuk, at para. 46; J.A., at paras. 37, 42 and 48). 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)).
Therefore, in my view, it is appropriate to refine the judicial lexicon and refer to the defence more accurately as an "honest but mistaken belief in communicated consent". This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.
[72] At paras 93 and 94 of Barton, the Court then examined the practical applications of the doctrine of “honest but mistaken belief in communicated consent”:
Focusing on the accused's honest but mistaken belief in the communication of consent has practical consequences. Most significantly, in seeking to rely on the complainant's prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred (see S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. loose-leaf), at s.16:20.50.30). For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused's perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: "prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question" (M. J. Anderson, "Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armour" (2004), 19:2 Crim. Just. 14, at p. 19, cited in Hill, Tanovich and Strezos, at s.16:20.50.30). These "negotiations" would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.
However, great care must be taken not to slip into impermissible propensity reasoning (see Seaboyer, at p. 615). The accused cannot rest his defence on the false logic that the complainant's prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. This is the first of the "twin myths", which is prohibited under s. 276(1)(a) of the Code.
[73] The court was also clear at paras 98 and 99 that notions of “implied consent” or “broad consent” (which latter concept does not apply in this case) were not sufficient to ground a defence of honest but mistaken belief in communicated consent in law:
(i) Implied Consent (Ewanchuk)
The "specious" defence of implied consent "rests on the assumption that unless a woman protests or resists, she should be 'deemed' to consent" (Ewanchuk, at para. 103, per McLachlin J. (as she then was)). Ewanchuk makes clear that this concept has no place in Canadian law. As Major J. stated for the majority, "a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence" (para. 51, citing R. v. M. (M.L.), 1994 77 (SCC), [1994] 2 S.C.R. 3; see also J. Benedet, "Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution" (2014), 52 Alta. L. Rev. 127). It is also a mistake of law to infer that "the complainant's consent was implied by the circumstances, or by the relationship between the accused and the complainant" (J.A., at para. 47). In short, it is an error of law -- not fact -- to assume that unless and until a woman says "no", she has implicitly given her consent to any and all sexual activity.
(ii) Broad Advance Consent (J.A.)
"Broad advance consent" refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefined scope (see J.A., at paras. 44-48). As summarized in J.A., the definition of "consent" under s. 273.1(1) "suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind" and "this Court has also interpreted this provision as requiring the complainant to consent to the activity 'at the time it occur[s]'" (para. 34, citing Ewanchuk, at para. 26). Thus, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.
[74] The court then examined s.273.2 of the Criminal Code of Canada as it relates to the defence of honest but mistaken belief in communicated consent. Section 273.2 states:
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's
(i) self-induced intoxication, or
(ii) recklessness or willful 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.
[75] At para. 104 of Barton, the court described the objective and subjective components of the reasonable steps test:
Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent -- no reasonable steps, no defence. 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 (see R. v. Cornejo (2003), 2003 26893 (ON CA), 68 O.R. (3d) 117 (C.A.), at para. 22, leave to appeal refused, [2004] S.C.C.A. No. 32, [2004] 3 S.C.R. vii, citing K. Roach, Criminal Law (2nd ed. 2000), at p. 157; see also Sheehy, at pp. 492-93). Notably, however, s. 273.2(b) does not require the accused to take "all" reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s. 150.1(4) of the Code (see R. v. Darrach (1998), 1998 1648 (ON CA), 38 O.R. (3d) 1 (C.A.), at p. 24, aff'd 2000 SCC 46, [2000] 2 S.C.R. 443 (without comment on this point)).
[76] Finally, at paras 106 to 109, the court described what can constitute reasonable steps and provided trial courts with direction on how to interpret same:
Keeping in mind that "consent" is defined under s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question", what can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.
That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537).
It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.
Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care -- mere lip service will not do.
Consent as elements of the Actus Reus and Mens Rea: Do They Affect One Another in Sexual Assault Cases?
[77] A key question in this case is whether the Crown must prove a lack of consent as part of the actus reus of sexual assault even in situations where the accused appears to rely upon a defence of honest but mistaken belief in communicated consent. Initially, Crown counsel effectively submitted that where an accused’s testimony advanced a defence of honest but mistaken belief in communicated consent and where that defence had no air of reality, the accused’s own evidence provided proof of lack of consent as per the actus reus. I asked counsel for further submissions on this issue as their initial submissions did not squarely address this concern.
[78] This interplay was discussed in R. v. Sgt. K.J. MacIntyre 2019 CMAC 3. In MacIntyre, the accused faced a court martial for allegedly committing a sexual assault. He was acquitted by a panel and the prosecution appealed.
[79] The Crown took that position that if a defence of honest but mistaken belief in communicated consent had no air of reality, the Crown would, by definition, have proven that the complainant did not consent to the conduct in question (at para 23):
The Crown submits that once the military judge ruled that there was no air of reality to the defence of honest but mistaken belief in consent, the essential element of the offence that Sgt. MacIntyre knew that Lt(N). M. was not consenting no longer applied. It is the Crown’s position that the only mens rea element is whether Sgt. MacIntyre intentionally touched Lt(N). M.
[80] In rejecting this Crown argument, the Court Martial Appeal Court of Canada stated that the Crown must always prove that the complainant did not consent to the act in question. At paras 32 and 33, the Court stated:
The appeal turns on how three distinct and clearly settled principles of criminal law interact in the context of sexual assault.
First, in my view, it is currently settled law by the Supreme Court of Canada that knowledge of the absence of consent is an essential element of the offence of sexual assault as it was of the former offence of rape. Thus, the Crown’s principal submission in this case – that absent an air of reality in relation to the accused’s honest but mistaken belief, the Crown does not have to prove knowledge of absence of consent – must be rejected. Because knowledge of absence of consent is an essential element of the offence, the Crown must prove it beyond reasonable doubt. The Crown’s submission that the mens rea of the offence is simply the intentional application of force is contrary to binding authority. [Emphasis added.]
[81] The Court Martial Appeal Court of Canada is effectively stating that the actus reus and mens rea elements of sexual assault are discrete inquiries such that a defence of honest but mistaken belief in communicated consent that has no air of reality does not, by itself, prove the “lack of consent” element of the actus reus. The Alberta Court of Appeal has made similar findings in R. v. Dippel 2011 ABCA 129 and R. v. Flaviano 2013 ABCA 219, [2013] A.J. No. 619 (decision upheld on other grounds at 2014 SCC 14, [2014] 1 S.C.R. 270). In Flaviano, the Alberta Court of Appeal examined a situation where an accused and a complainant gave conflicting versions of the complainant’s putative consent to sexual activity. The complainant testified that she told the accused that she did not want to engage in sexual conduct. The accused testified that the complainant communicated her consent to sexual activity by stating, “yes”.
[82] The trial judge found that the complainant did not consent to the acts in question but found that the accused may have had a mistaken belief in consent. In reversing the trial decision, the Alberta Court of Appeal stated at paras. 42 to 44:
With respect, the only issue was whether the complainant consented. The irreconcilably opposed versions offered by the complainant and the respondent left no room for the defence of mistaken belief. The trial judge fell into error by constructing for him another defence that he did not claim.
Our opinion is fortified by the introductory words of s 264(5): "Where an accused alleges that he believed that the complainant consented to the conduct which is the subject-matter of the charge ... ." [emphasis added] The respondent himself offered no such allegation in his evidence. We acknowledge that his counsel did advance both consent and mistaken belief in consent at trial. In doing so, he relied on R. v. Dippel, 2011 ABCA 129, 505 AR 347, where this court emphasized that these were distinct defences, and earlier cases to the effect that evidence of mistaken belief does not require support of the accused's testimony.
With regard to the former point, the comments in Dippel were simply to observe that defence counsel in that case was mistaken when he treated the two defences as interchangeable, such that if one did not apply, the other must. Nothing said in Dippel detracts from the fundamental principle that a defence must be supported by sufficient evidence to give it an air of reality before it warrants consideration; on the contrary.
[83] Therefore, in Flaviano, the nature of the evidence before the court was such that the defence of honest but mistaken belief in communicated consent had no air of reality. Either the complainant consented (as per the accused), or she voiced a lack of consent (as per the complainant). There was no evidence that would support such a defence. Inherent in this position, therefore, is the fact that the mens rea and the actus reus elements regarding consent must be treated as separate entities.
[84] While I am not aware of whether the Ontario Court of Appeal has commented upon this distinction, the Alberta position appears to be the logical conclusion to be drawn from para. 89 of Barton which states:
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple… [Emphasis added].
[85] The statement that “the accused’s perception of [the complainant’s] state of mind is irrelevant” at the actus reus stage of analysis suggests that the mens rea analysis requires a different consideration. The statement that “and the trier of fact accepts this evidence [the complainant’s evidence that she did not consent]” strongly suggests that it is open to the trier of fact to reject a complainant’s evidence with respect to her putative consent. Thus, as per Barton, the Crown must prove the lack of consent requirement of the actus reus, irrespective of the mens rea requirements. It also follows that the Crown must prove beyond a reasonable doubt that the complainant did not consent to the sexual touching in order to prove an offence under s.271, irrespective of whether the accused’s ostensible honest but mistaken belief in communicated consent has an air of reality.
Late or Piecemeal Disclosure in Sexual Assault Cases
[86] Late or piecemeal disclosure in sexual assault cases will not, standing alone, constitute a reason to impugn a complainant’s credibility. At para. 65 of R. v. D.(D.) 2000 SCC 43, a majority of the Supreme Court of Canada stated:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[87] This rationale was applied to piecemeal disclosure by the Ontario Court of Appeal in R. v. D.P. 2017 ONCA 263 at paras 28 to 31.
Credibility Analysis
[88] R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 is often quoted as representing the framework by which credibility is to be determined when an accused person testifies. In W.(D.) at para. 28, the Supreme Court enunciated the classic formula for assessing credibility:
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.
[89] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v. Dinardo, 2008 SCC 24 at para. 23:
The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.
[90] Two issues flow from the W.(D.) analysis that inform the result in this case. First, in a case where the accused testifies, the trier of fact must be certain that they do not engage in a “credibility contest” as per R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (Ont. C.A.) at para. 5:
W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[91] Second, in situations where an accused testifies and the accused’s evidence is tantamount to a confession that criminal activity occurred, the classic W.(D.) analysis may not suffice. As was stated in R. v. Ibrahim, 2019 ONCA 631 at para. 37:
The classic W.(D.) formulation will not always be appropriate; it depends on the context: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. For example, it may be inappropriate to give the instruction when the accused person's testimony, even if believed, does not negate criminal liability: R. v. McClenaghan, 2010 ABCA 222, 258 C.C.C. (3d) 1178, at para. 31, leave to appeal refused, [2010] S.C.C.A. No. 353. In other situations, the instruction must be modified. For example, in R. v. Thiara, 2010 BCCA 415, 79 C.R. (6th) 259, it was held that the trial judge did not err in modifying her W.(D.) instructions in light of the fact that the appellant's evidence was partially inculpatory and partially exculpatory.
Stereotypical Reasoning in Sexual Assault Cases
[92] The Ontario Court of Appeal recently synthesized the law as it relates to stereotypical reasoning in sexual assault cases. At para. 31 of R. v. Lacombe 2019 ONCA 938, [2019] O.J. No. 6023, Pepall J.A., writing for a unanimous court, canvassed the leading Supreme Court of Canada jurisprudence describing the dangers associated with stereotypical reasoning:
The Supreme Court has repeatedly held that myths and stereotypes about sexual assault victims have no place in a rational and just system of law. Relying on myths and stereotypes to assess the credibility of complainants jeopardizes the court's truth-finding function: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2. As Lamer C.J.C. explained in R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, at pp. 624-625:
Historically, a host of factors were deemed relevant to the credibility of complainants in sexual assault trials that did not bear on the credibility of witnesses in any other trial and which functioned to the prejudice of victims of sexual assault. In Seaboyer, supra, I discussed at length the hurdles that complainants faced in sexual assault trials due to these unfounded presumptions. ... These myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault. ...They suggest that the presence of certain emotional reactions and immediate reporting of the assault, despite all of the barriers that might discourage such reports, lend credibility to the assault report, whereas the opposite reactions lead to the conclusion that the complainant must be fabricating the event. Furthermore, they are built on the suggestion that women, out of spite, fickleness or fantasy and despite the obvious trauma for victims in many, if not most, sexual assault trials, are inclined to lie about sexual assault.
[93] At paras 34, Pepall J.A. adopted the following proposition from the Alberta Court of Appeal:
Martin J. described the dangers associated with myth-based and stereotypical reasoning in. R. v. C.M.G, 2016 ABQB 368, 41 Alta. L.R. (6th) 374, at para. 60:
Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certain people behave in particular situations. They often involve an idealized standard of conduct against which particular individuals are measured. Sometimes general, assumed or attributed characteristics are applied to a particular individual or circumstance, often without an analysis of whether there is any merit in the general assumption or whether it truly applies in a particular situation.
[94] At paras. 43 to 45 Pepall J.A. described the Court’s concerns regarding expected conduct:
(c) Expected Conduct
The complainant testified that she French kissed the respondent on both occasions because she was scared that he would hit her and, that on the second occasion when she refused to 'masturbate' him, he got mad. When asked why she would have allowed a second occurrence, she replied that she was scared that the respondent would hit her. The trial judge did not include these facts in his enumeration of significant factors, nor did he reject the complainant's testimony in this regard. Rather, he considered it significant that the complainant did not leave in spite of telling the respondent to stop.
As Major J. wrote in Ewanchuk, at paras. 38-39:
...there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force.
...The complainant's fear need not be reasonable nor must it be communicated to the accused in order for consent to be vitiated.
There is no rule as to how victims of sexual assault are apt to behave: R. v. Kiss, 2018 ONCA 184, at para. 101. The trial judge's reference to the fact that the complainant remained reflects that he was comparing her conduct to conduct he expected of a sexual assault complainant without giving any consideration to her evidence of fear.
The Unshaken Accused
[95] Despite the concerns outlined in Hall, supra, the Crown submitted that it is open to the trier of fact to accept a complainant’s evidence beyond a reasonable doubt even though the accused’s evidence had no obvious flaws as per R. v. D. (J.J.R). (2006) 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at 53 and 54:
The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
On the trial judge's reasons, the appellant knew why he was convicted. His daughter's evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant's guilt beyond a reasonable doubt despite the appellant's denial of the charges under oath.
The Complainant’s Evidence Regarding the Marriage
[96] I am troubled by the complainant’s evidence regarding the marriage. For example, the complainant initially denied that she was actively pursuing the marriage. Later, she indicated that she wanted to get married to ensure family support. The admission by the complainant that she wanted to get married to secure financial support is consistent with the position that the complainant was the driving force behind the marriage. Further, many of the accused’s friends were opposed to the marriage as was described by both the complainant and the accused. This opposition also supports the position that the complainant, not the accused, drove the marriage process. Therefore, I find that the complainant was the person who propelled the marriage and her refusal to admit same negatively affects her credibility.
[97] I am also troubled by the complainant’s unwillingness to inform her family of the marriage. Presumably, the complainant’s family would have supported the marriage given that the complainant needed to be married in order to secure her family’s blessing. I thus do not understand why the complainant withheld this information from her family. The complainant equivocated when attempting to explain this unusual feature of the case.
[98] Therefore, the complainant was less than forthright with the court about her rationale for getting married and the reasoning for why she would not tell her family.
[99] The complainant also testified that the accused became aggressive during the marriage. The complainant testified that she did not engage in abusive conduct towards the accused. I do not accept that the complainant was someone who was domineered by the accused. Rather, I accept that during the relationship, she would assert her will in situations where she felt same was necessary. She admitted in cross-examination that she would be forthright in her criticism of the accused’s conduct. She admitted that she had gone through the accused’s cell phone to examine his conversations on at least one occasion. She blocked the accused’s motor vehicle when he attempted to leave the scene of an argument. She called the accused “a liar”. She pursued marriage. She appears to have engaged in some conflict with the accused regarding women serving the accused in stores. Based upon the complainant’s own evidence, the complainant was not an individual who was intimidated and whose willpower was overborne by the accused. Instead, I find that the relationship was toxic and that the complainant was an active participant in much of the toxicity.
[100] Thus, the complainant was less than forthright about the marriage and her involvement in the marital dysfunction. This unwillingness to admit said involvement detracts from the complainant’s credibility as I find that the complainant minimized her evidence.
Demeanor
[101] The complainant testified without the use of an interpreter. She testified that, three years ago, her English was weak. The accused testified that the complainant’s English was weak at the time of the marriage. During examination-in-chief, the complainant’s voice was quiet, trailed off occasionally, was accented, and the complainant gave rambling, tangential answers. She often had long pauses in her testimony and used imprecise language about many issues. This combination of factors made it occasionally difficult during examination-in-chief to understand the complainant given the plexiglass present in the courtroom due to COVID-19. The witness was asked several times to raise her voice. This problem disappeared in cross-examination. I ordered a transcript of her evidence which provided a fulsome account of the complainant’s evidence.
[102] The accused submits that the complainant’s demeanour also detracts from her credibility. Defence counsel suggested that she presented as a “deer in the headlights”.
[103] While I agree that I can consider demeanor as a tool to determine credibility, it is also clear to me that this tool must be used with considerable caution. Truthful people can testify in a variety of ways. In this case, it is possible that the complainant’s “deer in the headlights” presentation was simply a function of her searching for words. The fact that the complainant was not testifying in her first language could easily account for her hesitation. I am therefore reluctant to place any weight upon the complainant’s demeanor since she was testifying behind plexiglass in a language that is not her first language.
The Complainant’s Evidence Regarding the Number of Anal Assaults
[104] Given the foregoing, many of the turns of phrase used by the complainant in the course of her testimony may not have the same force that they might otherwise have had had English been the complainant’s first language. When responding to questions about anal sex, the complainant made reference to “mostly” and “every time he tried to have...anal sex” which leads to the conclusion that she was disclosing new incidents of non-consensual anal sex. This is a possible material inconsistency in her evidence.
[105] Despite the complainant’s statements regarding “mostly” and “every time”, I am unwilling to find that the complainant in fact testified that multiple anal sexual assaults occurred. Her turn of phrase, although highly suggestive of multiple incidents, did possess some room for equivocation. It is also important to note that neither counsel clarified this evidence with respect to the number of anal sexual assaults. Given the fact that the complainant was not testifying in her first language, and given the fact that the number of anal sexual encounters was not clarified in evidence, I am not willing to find that the complainant’s evidence contained a prior inconsistent statement on this point. In the absence of clarity, it would be unfair to the complainant to make such a finding. Nonetheless, it is obvious that the complainant’s evidence on this issue was, at the very least, ambiguous which leaves me with some concern regarding the complainant’s reliability.
Delayed and/or Piecemeal Disclosure
[106] Mindful of D.(D.), delayed and/or piecemeal disclosure of traumatic offences does not, standing alone, affect credibility. To rely on delayed disclosure to discount a complainant’s credibility would suggest that victims of sexual and/or domestic assault respond in stereotypical ways. As noted above, such a finding would engage in prohibited reasoning as to how a victim of traumatic incidents must behave.
[107] In the case before me, when asked about her failure to disclose sexual assaults to the police, the complainant testified that she was nervous about speaking with police during the initial disclosure. When one considers the level of personal trauma and other emotions that undoubtedly affect victims of sexual abuse, it would not surprise me that if the accused were guilty of sexual assault as was described by the complainant, the complainant might be unwilling to provide early and/or complete disclosure. The complainant’s explanation for not disclosing any sexual assaults in her first police interview due to nervousness, therefore, makes imminent sense to me and I take nothing from this fact.
[108] Similar considerations undoubtedly hold true of the complainant’s failure to describe anal bleeding prior to trial. Given the magnitude of the anal sex allegations, it seems clear to me that the complainant may have forgotten to mention the bleeding. Bleeding might be the kind of detail that a complainant would consider to be insufficiently important to mention when confronted with the undoubted physical and psychological trauma associated with the complainant’s allegations. Or it may be that she was too embarrassed to mention same. Again, this delayed disclosure is of no moment.
[109] The complainant’s late disclosure of the alleged physical assaults is a different matter. The complainant did not disclose the incident regarding the vaporizer until trial. The complainant did not disclose the fact that she was punched in the stomach until trial. The complainant did not disclose the fact that she fell upon chair legs until trial. As has been noted, people who suffer abuse will behave in a variety of ways such that no stereotypical behaviour regarding disclosure can/ought to be expected. In this case, however, the complainant simply indicated that she failed to mention the assaults because she did not remember them at the time of the first statement, even though she attended the police station to discuss physical assaults.
[110] The complainant’s explanation that she simply did not remember the incidents in question does not have much resonance. As noted in paragraphs 96 to 100 of these reasons, the complainant was not forthright with the court about her involvement in the marital aggression such that I have concerns that the complainant was not being entirely truthful with the court. The complainant’s delayed disclosure of alleged physical assaults therefore also raises concerns that she is exaggerating certain aspects of her story. Accordingly, the complainant’s evidence about the stomach punch, vaporizer stab and falling on chair legs negatively affects her credibility in a material fashion.
[111] The late disclosure of these assaults affects the analysis regarding the late and/or piecemeal disclosure of the sexual assaults involving anal sex. Although I am not certain that the complainant in fact gave inconsistent statements in this regard, the complainant’s opaque evidence causes me some hesitation that she may be exaggerating about the number of instances of anal sexual assault. Because this evidence was not clarified, I am not prepared to give this concern significant weight. However, the number of times where the complainant appears to suggest that multiple instances of anal sexual assault occurred is such that some weight must be afforded to this issue. The possibility that the complainant provided me with inconsistent evidence regarding the number of anal sexual assaults is therefore of some import and affects the complainant’s credibility as a result.
The Complainant’s Overall Credibility
[112] The complainant’s evidence had aspects that lent it credibility. Her evidence generally made sense and was largely internally consistent with respect to important matters that constitute the gravamen of the offences before the court. She also presented as someone who was attempting to recall events as best she could despite the aforementioned concerns with her demeanour.
[113] Equally, some of her evidence had a ring of truth. For example, the complainant’s testimony that she remembered looking at a computer during anal sex makes sense to me in that it is the kind of detail one can imagine a person remembering during such an incident.
[114] Nonetheless, the complainant’s evidence had several troubling aspects including:
a. Her often contradictory, exaggerated, minimized and/or illogical evidence about the nature of the marriage and her role in it significantly diminished her credibility;
b. Her delayed disclosure regarding the physical assaults significantly diminished her credibility; and
c. Her ambiguity regarding the number of anal sexual assaults moderately diminished her credibility.
[115] All told, these evidential frailties are such that I have grave concerns about the complainant’s general trustworthiness.
The Accused’s Credibility
[116] In contrast, the accused’s evidence was largely untouched given the brevity of the cross-examination. He denied ever striking or hitting the complainant. He denied having sexual involvement with the complainant other than with her consent.[^3] He was not shaken on these points and his evidence contained no flaw in reasoning or logic and his evidence betrayed no contraventions of common sense.
[117] In fact, the accused’s evidence that he went to a pharmacy to get blue and red lubricant had the ring of truth. He described the sensations associated with each lubricant, which is a detail that one can imagine a person remembering given the events described. Equally, he testified that the couple were worried about his weight potentially injuring the complaint during anal sex such they modified their physical positions. This evidence also appears to have a ring of truth.
[118] The accused described incidents where the complainant was physically assaultive and verbally aggressive with him. This testimony is consistent with the complainant’s admission that she engaged in controlling and abusive behaviour. Therefore, the accused’s evidence has a strong ring of truth and is consistent with the complainant’s evidence in important areas.
Findings on Physical Assault and Vaginal Sexual Assault
[119] When I consider all of the evidence, I am not satisfied beyond a reasonable doubt that the accused committed simple assault or sexual assault involving vaginal intercourse. This is not a case like D.(J.J.R.) where, despite the accused’s unshaken evidence, the evidence is clear. Instead, this is a case where the complainant’s evidence was deeply flawed. I described the weaknesses in her evidence at paragraphs 96 to 115 of these reasons. These issues dictate that her evidence is incapable of being believed beyond a reasonable doubt.
[120] By contrast, the accused’s evidence was credible and nearly flawless. I have no reason to reject any portion of his evidence. It had logic with respect to his unwillingness to hurt the complainant and their ostensible decision to have her place herself on top of him during anal sex. His evidence also had the ring of truth in that the accused remembered certain details regarding lubricants that add specificity, and thus credibility, to his recollections. Pursuant to the W.(D.) analysis described in paragraphs 88 to 91 above, the accused’s evidence leaves me in a state of reasonable doubt regarding the complainant’s allegations. I am not satisfied that the anal sex that occurred was non-consensual because the complainant’s evidence was generally very weak and the accused’s evidence regarding the complainant’s consent was clear and credible. The evidence as a whole thus leaves me in a state of confusion as to whether the complainant consented to having anal sex with the accused.
[121] With respect to the physical assault allegations, the complainant’s evidence was not strong. She remembered certain incidents only at trial and attempted to explain this delay by stating that she would remember some details but not others. As noted at paragraphs 106 to 110 of these reasons, this explanation makes little sense. Conversely, the accused’s evidence was clear that he did not ever strike the complainant. He was not shaken on this point. Again, I have considerable doubt about the complainant’s version of events and I have no reason to reject the accused’s evidence. I am uncertain what happened which is, of course, a state of reasonable doubt.
[122] Therefore, with respect to counts number 1 and 2 on the indictment (the counts of assault and the sexual assault particularized as involving anal sex), the accused will be found not guilty of same.
Findings Regarding the March 17/18, 2018 Incident
[123] As for count 3, a different analysis is necessary. The complainant and the accused both testified that sexual activity occurred on the night of March 17, 2018, and again on the morning of March 18, 2018.
March 18, 2018
[124] With respect to the morning of March 18, 2018, the complainant recounted the incident with clarity and her testimony in this regard had no obvious flaws. She was clear that the accused was penetrating her when she awoke. There is no reason to diminish the evidential value of this evidence other than the general concerns previously outlined in these reasons. These general concerns are weighty, however.
[125] The accused’s testimony struck me as being reliable and persuasive. He recounted interactions that occurred between the couple with some detail. He was not meaningfully challenged regarding same in cross-examination. I am therefore in considerable confusion as to what exactly happened on the morning in question and I cannot find beyond a reasonable doubt that events occurred as were described by the complainant. I cannot find beyond a reasonable doubt that the accused committed sexual assault on the morning of March 18, 2018.
March 17, 2018
[126] With respect to the events that occurred during the evening of March 17, 2018, while the complainant’s evidence was consistent and clear, as noted in paragraphs 96 to 115 of these reasons, her evidence was deeply flawed such that I cannot accept her testimony beyond a reasonable doubt. Conversely, the accused’s evidence was credible and largely untouched. Accordingly, I cannot accept the complainant’s version of events beyond a reasonable doubt as regards the evening of March 17, 2018.
[127] Nonetheless, the Crown submits that the accused’s evidence on this point was tantamount to a confession. The Crown submits that, on the accused’s own testimony, sexual activity occurred as between the accused and the complainant. The accused’s defence of honest but mistaken belief in communicated consent has no air of reality. The accused’s evidence that the complainant remained silent during the accused’s advances corroborates the complainant’s testimony that she did not consent. I thus ought to accept that a sexual assault occurred as between the two on the evening in question because the complainant did not consent to said activity. Put another way, the Crown submits that the accused convicted himself.
Honest but Mistaken Belief in Communicated Consent
[128] As per the accused’s evidence, the complainant did not communicate consent by word or by deed. The complainant did not communicate at all prior to the penetration. In fact, according to the accused, the complainant did nothing while the accused kissed her back and moved her underwear to the side. At its highest, the accused’s evidence is that the complainant acquiesced through her silence. As noted at para. 98 of Barton, supra, this conduct is implied consent and is not capable of supporting a defence of honest but mistaken belief in communicated consent.
[129] There is also no evidence before me that the accused and the complainant engaged in prior conduct or negotiation about sexual activity, the specifics of which could have provided the accused with the basis for an honest mistaken belief in communicated consent as described in Barton.
[130] Counsel for the defence submitted that I ought to consider both the marital relationship as well as the complainant’s assertive nature as a basis for finding that the accused undertook reasonable steps in the circumstances to ascertain the complainant’s consent. While I find that, as a matter fact, the accused believed that the complainant was consenting because, as a result of their marriage and her demeanor, she did not rebuff the accused’s advances, as a matter of law this evidence is insufficient to support a finding that the accused had an honest mistaken belief in communicated consent as per Barton. To suggest otherwise would effectively invite a court to engage in implied consent as a result of a marital relationship.
[131] As noted at para. 108 of Barton, “the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent”. The accused relies upon his evidence that he kissed her back and moved her underwear prior to penetration as the basis for engaging in reasonable steps. Standing alone, and given the invasive nature of vaginal penetration, kissing someone’s back and moving someone’s underwear does not constitute reasonable steps.
[132] Accordingly, upon the facts of the case as described by the accused, the accused’s defence of honest but mistaken belief in communicated consent has no air of reality.
Lack of Consent and the Actus Reus
[133] With respect to the actus reus on the accused’s rendition of events, the accused penetrated the complainant’s vagina believing that she was consenting to the conduct in question. She said nothing leading up to the penetration but, after a few seconds, told the accused to “stop” at which point he ceased said penetration. The issue for me to determine is whether I am satisfied beyond a reasonable doubt that the complainant did not consent.
[134] The complainant testified that she did not consent to the sexual touching. Her evidence is the only direct evidence on this point. The Crown submits that the complainant’s silence corroborates her evidence. As noted in paragraphs 96 to 115 of these reasons, the complainant’s evidence had important defects that materially affected its credibility. The concerns are sufficiently great that, even if I were to accept that the complainant’s silence is capable of corroborating her testimony, the complainant’s minimization of her involvement in the marriage’s toxicity and the multiple issues regarding late disclosure damage her evidence to the point where I have a reasonable doubt with respect to all aspects of her testimony. Put another way, said putative corroboration does not sufficiently buttress the complainant’s evidence so as to satisfy me beyond a reasonable doubt that she did not consent to sexual activity on the evening of March 17, 2018. It is possible that the complainant did not consent to the sexual conduct in question. It is also possible that the complainant consented in her mind to the sexual conduct, then revoked said consent verbally. Based upon the complainant’s evidential frailties described in these reasons, I cannot be sure. The Crown has not, therefore, proven “lack of consent” element of the actus reus beyond a reasonable doubt. Even if I consider the complainant’s silence as evidence of corroboration, her meaningful evidential blemishes do not permit me to accept her evidence on this issue.
[135] Therefore, I find that the complainant and the accused engaged in sexual activity on the night of March 17, 2018 but I am not satisfied beyond a reasonable doubt that the accused committed a sexual assault. The weaknesses in the complainant’s evidence are such that I cannot accept beyond a reasonable doubt that she did not consent to this activity. The accused will be found not guilty of count #3.
CONCLUSION
[136] The accused is hereby found not guilty of all charges before the court.
Varpio J.
Released: November 13, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M. F.
REASONS FOR JUDGMENT
Varpio J.
Released: November 13, 2020
[^1]: I take nothing from the testimony regarding the complainant’s lack of avoidant behaviour and/or her ability to fall asleep after the alleged sexual assault on March 17/18, 2018. Lack of avoidant behaviour is not, of course, a relevant legal consideration: R. v. A.J.R.D. 2017 ABCA 237; R. v. Kiss, 2018 ONCA 184 at para. 101; R. v. A.R.J.D. 2018 SCC 6. Equally, the complainant’s ability to sleep after an alleged sexual assault effectively asks me to engage in stereotypical analysis about the expected behaviour of a complainant in a sexual assault case. Stereotypical reasoning will be dealt with later in these reasons.
[^2]: I considered the applicability of s.276 to this evidence and asked counsel for submissions. Counsel ultimately decided that I did not require a s.276 application given the breadth of the timeframe of the indictment, the nature of the evidence, the questions asked and the uses to be made of this evidence. Within the context of this case, counsel submitted that if the complainant testified that multiple anal sexual assaults occurred, all the impugned acts would have been caught within the timeframe specified in the indictment. Accordingly, no s.276 application was necessary.
[^3]: I will deal with consent as it relates to the March 17/18, 2018 incident separately from the allegation of anal sexual assault.