ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CR-18-1300
DATE: 2020 02 06
B E T W E E N:
HER MAJESTY THE QUEEN
R. Prihar, for the Crown
- and –
J.R.G.
A. Edgar, Counsel for the Accused
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
D.E. HARRIS J.
INTRODUCTION
[1] The defendant J.R.G. pled guilty at the outset of this proceeding to sexual interference against the complainant A.B.H. committed June 2, 2017 (count 2) and to two counts of breach of his bail condition not to have contact with the complainant committed August 15, 2017 (count 6) and August 9-15, 2017 (count 7). He pled not guilty to threatening death which allegedly occurred immediately after the sexual interference on June 2, 2017. He also pled not guilty to one count each of sexual assault and sexual interference allegedly committed August 15, 2017.
[2] The counts upon which the defendant pled not guilty were subsidiary to the Gardiner issue raised in this hearing: R. v. Gardiner 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, codified in Section 724(3)(e) of the Criminal Code. It can be described in this way: The complainant Ms. B.H. was 14 years old when sexual intercourse with the accused took place on June 2, 2017. He was 19 years old, 5 years and three months older than she was. The intercourse was both admitted by the plea of guilty and supported by DNA results from the accused’s semen found in the complainant’s vagina. This latter fact was proved by an agreed statement of fact between counsel.
[3] By reason of Section 150.1(2.1) of the Criminal Code, consent is no defence to a charge of sexual assault or sexual interference if the complainant is at least 14 years old but under 16 and there is more than five years between the complainant and the accused’s ages. The sexual offence provisions embody Parliament’s policy that in light of their respective ages, Ms. B.H.’s consent, if it was given, was legally ineffective. In this case, as a result, the act components of non-consensual sexual touching were proven. There was therefore no issue of the accused’s guilt.
[4] The Crown, however, goes further and alleges that not only was there no legally effective consent, there was no actual consent either. The sexual act was forced against the will of the complainant. She did not consent in fact. The main purpose of the hearing was to determine whether the Crown had met their burden to prove this aspect beyond a reasonable doubt.
[5] It is the defence position that the complainant was both unreliable and lacking in credibility. Her claim of forced sexual intercourse was not proven beyond a reasonable doubt.
I. Summary of the Evidence
[6] A video statement the complainant made to the police just hours after the alleged sexual interference offence on June 2, 2017 was admitted into evidence on consent under Section 715.1 of the Criminal Code. The complainant adopted the statement in her evidence at trial.
[7] The complainant testified that the accused was a good friend of hers. They bonded over the tragic death of a mutual friend and became very close. She would go over to his apartment to talk about the tragedy and to play video games. Her mother did not like the accused and did not want her daughter to associate with him. Ms. B.H. would lie to her mother about where she was going when she visited the accused.
[8] On June 2, 2017, the complainant went over to the accused’s apartment. He had said that he had something to show her from their deceased friend. Once she got there, it turned out that the accused had two items that Ms. B.H. had not only seen before but had previously been in her possession.
[9] The complainant and accused played videogames as they often did. He got up and went to the bathroom. When Mr. R.G. returned, he turned off the light in the bedroom. He started kissing Ms. B.H.’s neck. She told him not to touch her. He then started laughing and pinned her down. He said that he knew that she loved him. The accused then removed her pants and underwear. He removed his shorts but left his shirt on.
[10] He then inserted his penis into her vagina. She was on her left side and he was behind her. He was wearing a condom. After about five minutes, he removed his penis from her and took off the condom. He said, “I’m taking this shit off.” There was a rubber balloon sort of noise. At this point, he put his penis back into her. This continued for about 15 minutes. He ejaculated. She felt it and he told her that he had ejaculated.
[11] During the rape, she told him to stop on several occasions. Mr. R.G. said that she did not know who she was dealing with.
[12] After he was finished, he wiped his penis with a sheet on the bed. He then got up and had a short shower in the bathroom. Ms. B.H. said that she was too scared to leave. She would have had to wait for the bus and he already knew what bus she was taking.
[13] He got dressed after he got out of the shower. She told him that she needed to catch her bus but he told her that she was not going anywhere. He shut the door. Eventually she was able to convince him to leave. When they were at the bus stop, he said that if anyone found out, he was going to come and “put a cap in everyone’s ass.” This scared Ms. B.H. The threat was the subject matter of count 3 of the indictment, which particularized it as being a threat to cause death to Ms. B.H.
[14] They took the bus to Bramalea City Centre and spent some time there. Ms. B.H. tried to walk away from him but he kept following her. She ignored him. He took her phone from her but she was able to get it back. She called Damian, a friend of her sisters, who was nearby the mall at a skatepark in Chinguacousy Park.
[15] She met Damian in the skate park and Mr. R.G. soon left the area. Ms. B.H. told Damian on the hour long walk home what had happened to her although she did not give much detail. She did not want to tell her mother because she might get angry with her but Damian convinced Ms. B.H. that she had to tell her mother. When they arrived home at about 11:30 p.m., her mother answered the door. Her mother asked her whether she thought it was funny that she was so late for curfew (the curfew was 8 p.m.). Damian told her mother what Ms. B.H. had told him about what had happened. After her mother found out what had happened, she calmed down.
[16] The police were called and brought Ms. B.H. to the hospital. Shortly afterwards, she gave the Section 715.1 statement to the police. She gave more detail in that statement then she had in speaking to Damian or her mother.
[17] Ms. B.H. in her Section 715.1 interview admitted deleting texts from the accused. She thought her mother was going to take her phone and check her messages. Her mother did not like Mr. R.G.
[18] The accused was arrested and released on bail. Contrary to his bail release, he texted and called Ms. B.H. on the telephone quite frequently. She would often not take his calls. She was nervous and concerned about his aggression. The texts were filed as an exhibit on this trial. At one point, he threatened to burn down her house and take her away. As a consequence of the contact, Mr. R.G. pled guilty to count 7 of the indictment, failing to comply with his bail.
[19] On August 15, 2017, just over two months after the sexual interference offence was committed, Mr. R.G. came towards Ms. B.H. in Madoc Park. He had contacted her that day by text and phone. She was shocked and said that he was not allowed to be near her. Ms. B.H. was on the swings with Nathan, a young cousin, who was 7 years old. Eventually Mr. B.H. sat down with the accused on the grass. Ms. B.H. testified to Mr. R.G. being generally hostile and touching her on the stomach and taking her phone from her. She told him not to touch her. She experienced an anxiety attack as a result of seeing Mr. R.G.
[20] With respect to this incident, it is alleged that Mr. R.G. touched her on the inner upper thigh over her jean shorts, thereby committing a sexual assault or sexual interference, counts 4 and 5 of the indictment.
[21] The accused did not testify on this hearing.
II. Is There Confirmation of the Complainant’s Evidence?
[22] A central question is whether it is true that, as the defence argued, there is no confirmation for the complainant’s evidence with respect to the forced intercourse. There is no controversy that there need not be confirmation as a matter of law. This requirement was repealed almost 40 years ago: see Section 274 of the Criminal Code R.S.C. 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12; 2014, c. 25, s. 16.
[23] However, confirmation remains an important evidentiary question. If there is confirmation, it can be an important means for the Crown to strengthen the evidence of the complainant: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at paras. 1-2.
[24] In my view, there is confirmation in this case. It was an agreed fact that a rape kit was done on the complainant at Trillium Hospital after midnight on June 3, 2017. Ms. B.H. gave her statement to the police--admitted as original evidence in this trial under Section 715.1 of the Code (see R. v. C.C.F. 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at paras. 17-29)-- commencing June 3, 2017 at 5:39 a.m., only a few hours after the incident. She said that Mr. R.G. had raped her and ejaculated in her after he took off the condom he had been wearing.
[25] On July 19, 2017, a report was authored by a scientist at the Centre for Forensic Sciences identifying two DNA profiles on the vaginal swabs taken as part of the rape kit the night of the offence: one was Ms. B.H.’s and the other was semen of an unknown male. On January 31, 2019, the male semen profile was positively identified as that of Mr. R.G.
[26] Succinctly put, the complainant’s allegation that Mr. R.G. had ejaculated inside of her during unprotected sex, an allegation made before there was any evidence other than hers to support it, was later bolstered by forensic evidence. This confirmed the complainant’s evidence both that there was sexual intercourse, upon which it was definitive, but also circumstantially supported her version that the sexual intercourse was without her consent, the live issue on this hearing.
[27] The DNA evidence met the general conditions for confirmatory evidence: R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271 at paras. 8-13, aff’d 2019 SCC 11; R. v. Khela, at paras. 39-42. The evidence was independent of the complainant. It confirmed a material, indeed a key part, of the complainant’s version: specifically, that he ejaculated inside of her.
[28] Ms. B.H. was telling the truth about the intercourse and the ejaculation. Although not conclusive on whether she was telling the truth about the logically integral lack of consent, it makes it more likely that she was telling the truth about this as well.
III. Of What Importance are the Complaints Made by Ms. B.H. and her Emotional State?
[29] Damian and Ms. B.H.’s mother described the nature of the complaints made after the sexual intercourse and testified to Ms. B.H.’s emotional state. How probative is this evidence and what use can be made of it?
[30] The Crown elicited some of the specifics of the complaints particularly as made to Damian. Also, evidence was adduced from Damain and the complainant’s mother that Ms. B.H. was upset at the time they saw her. There is also evidence that on the August 15, 2017 date when she was seen by family friends in Madoc Park in the company of Mr. R.G., she was having a panic attack and visibly shaking.
[31] The area of prior consistent statements is a common source of judicial error. Great care is necessary. The evidence is often inadmissible in its totality. If it is admissible, it is imperative that it be strictly circumscribed: R. v Dinardo, 2008 SCC 24 at para. 37, [2008] 1 SCR 788; R. v. D.K. 2020 ONCA 79 at paras. 27-46; R. v. D.C. 2019 ONCA 442 at paras. 19-24; R. v. P. (M.) (2001) 2001 CanLII 24119 (ON CA), 151 C.C.C. (3d) 193, 52 O.R. (3d) 631 (C.A.), at paras. 22-23; R. v. A. (J.) (1996), 1996 CanLII 1201 (ON CA), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 536; R. v. Lajoie, [1993] O.J. No. 429 (C.A.); R. v. Wait (1994), 1994 CanLII 8757 (ON CA), 69 O.A.C. 63, at p. 65; R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476.
[32] In this case, the evidence was admissible for the narrative purpose of completing the storyline and explaining the progression of events. Also, it was admissible to give context to the observations of Ms. B.H.’s emotional state: see R. v. D.K. at paras. 38-40.
[33] Damian testified that when he saw her after she texted him at the skate park, she was uneasy and “physically distraught.” When they arrived at Ms. B.H.’s house at about 11:30 p.m., her mother, J.H., testified that her daughter appeared quiet, scared, and crying. Normally, Ms. B.H. would argue about being late for curfew but she did not this time.
[34] The complainant’s emotional state is admissible to reinforce her evidence that sexual intercourse was forced on her against her will. This type of evidence is often ambiguous and must be handled with care: see R. v. P.M.J., 2018 ONSC 1480, 145 W.C.B. (2d) 443 at para. 18; : R. v. A. (J.), 2010 ONCA 491, 261 C.C.C. (3d) 125 (Ont. C.A.), at paras. 17-8 and see in particular Winkler C.J.O. in dissent at para. 99, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628 (S.C.C.), see para.14; R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397 (Ont. C.A.), at para. 33.
[35] Ms. B.H.’s emotional state was clear. The major question to be asked in this situation is whether the complainant’s emotional upset could be attributed to having had consensual intercourse with Mr. R.G. or whether it was because of the fact of non-consensual intercourse. I am convinced that it was more consistent with non-consensual intercourse than with consensual intercourse.
[36] Damian did not know the complainant well. The emotional state he testified to was more likely to be from being forced to engage in sexual intercourse rather than having consensual voluntary intercourse with Mr. R.G. There was no reason for her to be distraught or to mention anything about it if the sex had been consensual.
[37] Ms. B.H.’s mother, J.H., knew her better than anyone. This is to be contrasted with a jury evaluating an unknown witness in court, an area in which there are strong warnings in the case law: R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675, at paras. 85, 88-89 and 92-93; R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357, at paras. 15-18; R. v. Norman, 1993 CanLII 3387 (ON CA), [1993] O.J. No. 2802, at paras. 53-55; White, at paras. 139-145, 180 per Binnie J. dissenting.
[38] Furthermore, the demeanour cases are generally concerned with evaluating a witnesses’ truthfulness while the issue in this case was Ms. B.H.’s emotional state, a subject not nearly as opaque.
[39] In addition, the two family friends, C.H. and her son, saw Ms. B.H. with Mr. R.G. on August 15, 2017 in Madoc Park. When she got up to go with them, according to C.H., Ms. B.H. was shaking profusely. She had a scared expression on her face. Her mother saw her shortly afterwards when the friends brought her home. She testified that her daughter was suffering a panic attack and was having trouble breathing. As C.H. testified as well, she was unsteady on her feet.
[40] The fear of Mr. R.G. evident in these observations tends to lend some support to the complainant’s testimony that she was frightened of the accused because she was forced by him to have sexual intercourse against her will. Of course, a caveat is necessary because of the two-month time period between the sexual intercourse and the August 15, 2017 date. It was not proximate to the event. It was a reaction to seeing Mr. R.G. for the first time since June 2, 2017.
[41] In summary, I would not place substantial weight on the demeanour of the complainant evidence, but it does add to the Crown’s case to some extent.
IV. The Motive to Fabricate Postulated by the Defence
[42] The defence argues that the complainant had a motive to falsely accuse Mr. R.G. for two distinct reasons: 1. She was fearful that she might become pregnant from the sexual intercourse and alleged that the sex was not consensual in order to disguise her voluntary participation; and\or, 2. She was over 3 hours late for curfew and was compelled to come up with an explanation for herself.
[43] There is no onus on the defence to demonstrate motive to fabricate for the reasons articulated in R. v. M.S., 2019 ONCA 869, [2019] O.J. No. 5633 at paras. 15-16 and R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371 at paras 19-23. If viable, however, a motive to fabricate in this case could have the effect of hindering the Crown in its attempt to prove forced intercourse.
[44] Dealing first with the motive to fabricate arising from a fear of pregnancy, I do not agree with the defence. I am entitled to look at Ms. B.H.’s complaints to Damian and her mother for a limited purpose; that is, as circumstantial evidence pertinent to her credibility and reliability: R. v. Zou, 2017 ONCA 90, 346 C.C.C. (3d) 490 at paras. 34-37; R. v. D.K. at para. 38; R. v. Khan 2017 ONCA 114, 136 O.R. (3d) 520 at paras. 31-39 and paras. 64-65, 70.
[45] There was no allusion to pregnancy or anything of that nature in these complaints. Nor was there anything of a similar nature in her Section 715.1 statement. It is not inevitable that it would have been mentioned, but it is likely there would be an indication of some kind. Because of Ms. B.H.’s nervousness and anxiety, it is unlikely that she could have hidden this and said nothing about it if it had truly been of importance to her.
[46] Ms. B.H. in cross-examination said that she was not concerned about pregnancy because she did not know whether Mr. R.G. ejaculated or not. Clearly, as of the time of the Section 715.1 statement, she did believe that he ejaculated in her. That assertion was significantly more reliable than her evidence at this trial. Despite this important discrepancy, I do not believe that she was trying to cover up a concern about possible pregnancy. Her memory was failing her at trial. That was not surprising, given that the incident was more than three years previous.
[47] With respect to the motive to fabricate because she was late for curfew, I reject this suggestion as well. To have attempted to mitigate her tardiness by alleging rape would have been an extreme reaction to what was a relatively minor transgression.
V. Reliability and Credibility
[48] There is no doubt that there was a substantial degree of unreliability to the complainant’s evidence. Does the complainant’s unreliability substantially damage her credibility on the central issue to be decided: whether she was forced to have sex with the accused?
[49] Mr. Edgar argues, in a nutshell, that Ms. B.H.’s credibility was undermined by the many inconsistencies in her evidence. The premise of this argument is well-founded. Inconsistencies abounded in her evidence. But this is not unusual in the evidence of a young woman who at the time of the events was 14 years old, although 17 by the time of trial. Justice Wilson said in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55,
. . . the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults…a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. . . .
[50] One can quibble about the applicability of this comment given that Ms. B.H. was not a young child. However, I find the same general principle applies, given her relative lack of maturity and her high degree of anxiety, although it should be tempered to some extent.
[51] Perhaps the inconsistency which goes most directly to the allegation of forced intercourse is the question of whether Mr. R.G. was wearing a condom and whether he ejaculated inside of her. Her evidence in the Section 715.1 statement was that he was wearing a condom when the rape began but took it off and ejaculated inside of her. At the preliminary hearing she said that she did not know whether he was wearing a condom. Her evidence at the trial on the point was quite confused. With respect to ejaculation, although being quite unequivocal in her Section 715.1 statement, she was now unsure of it.
[52] There was also a problem with evidence elicited in cross-examination that Mr. R.G. held Ms. B.H.’s wrists throughout the rape. This arguably contradicted her evidence that she used her hands to try to push him away. Furthermore, it was argued that there would have been bruises on her wrists if this had actually happened.
[53] Another example of an inconsistency is Ms. B.H.’s evidence that when the two left his apartment and went to the bus stop, they missed two buses because they were looking for change she had dropped in the grass. Given that the buses were running about 15-20 minutes apart, this made little sense. At the preliminary hearing, she said that after they missed the first bus, they walked to another stop and got the bus there.
[54] These are just examples of inconsistencies and changes in Ms. B.H.’s testimony. Inconsistencies like the circumstances around missing the bus could not possibly be calculated to deceive. Rather, they were indicative of Ms. B.H.’s general inconsistency when it came to remembering details.
[55] Before the incident, because of anxiety issues she was experiencing, she had been home schooled for a time. On the witness stand and in the Section 715.1 video, her nervousness was palpable. To get her to talk in the video about the intimate parts of the alleged sexual assault was extremely difficult. On the witness stand in this trial, she often seemed on the brink of breaking down. She did on one occasion. Throughout, she was on edge and appeared fragile.
[56] I conclude that Ms. B.H.’s memory was quite poor. This was in part intrinsic but was exacerbated by the traumatic nature of the incident in her mind and by the time elapsed since the events.
[57] Inconsistencies of little consequence like the missing of the buses suggest that Ms. B.H.’s unreliability was pervasive and was not a result of intentional prevarication on her part.
[58] Lack of reliability in a witness is always important and invites careful scrutiny. But lack of reliability of the kind that is evidenced here is not always fatal. The real question is whether the many inconsistencies in Ms. B.H.’s evidence wreaked significant damage to her credibility on the ultimate issue in this case.
[59] The ultimate issue in this hearing was whether the sexual intercourse was forced or consensual. An issue of this magnitude does not hinge on peripheral details. The complainant knew full well whether she consented or not when she gave her Section 715.1 statement just a few hours later. Consent was to be judged exclusively from Ms. B.H.’s perspective and was purely subjective: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at paras. 42-44. The memory problems and inconsistency which burdened Ms. B.H.’s evidence at trial did not detract from her evidence that she did not consent to sexual intercourse with Mr. R.G. Unreliability did not lead to a lack of credibility.
VI. The Actions of the Complainant Belie a Sexual Assault Against Her
[60] Defence counsel argued that a number of the complainant’s behaviors during and after the incident demonstrated that she did not act like a person who had just been forced to have sexual intercourse against her will.
[61] Counsel suggested that Ms. B.H. did not try to kick Mr. R.G. when he was trying to get her pants off or move her legs to make it more difficult. She did not make much effort to push Mr. R.G. away during sex, only doing so once. She did not continually urge him to stop.
[62] It was pointed out in cross-examination that when Mr. R.G. was in the shower, she did not attempt to leave. Despite Mr. R.G. sexually assaulting her and not acting like the person she thought he was, she did not use her phone to call or text anyone for help. She was willing to go to the bus stop with him and waited for the bus to come. Ms. B.H. did not try to get away from him on the bus; she did not get off at an earlier stop. They went to the mall together and she did not try to get the attention of a security guard there or run away.
[63] When he texted her and called her, she did always ignore him, did not fend him off but replied at times in a friendly almost encouraging tone.
[64] Most of these points of cross-examination were reiterated in counsel’s final submissions.
[65] I reject this line of argument impugning Ms. B.H.’s credibility. The answer to counsel’s argument is deceptively simple. Myths and stereotypes obscure what ought to be obvious.
[66] It has long been recognized that myths and stereotypes pervade attitudes towards sexual offences. This was first recognized by Parliament in the 1982 revisions to the Criminal Code (1980-81-82-83, c. 125, s. 19) which brought in the rape shield legislation prohibiting the twin-myth reasoning, eliminated the antiquated offence of rape and made other important modernizations, such as repealing the rules which had grown up around the issue of recent complaint and the requirement of corroboration.
[67] The courts in interpreting the rape shield statute and in other cases, expounded on the myths and stereotypes targeted by Parliament in the new legislation: see R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 624-625; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, per McLachlin J. (as she then was) at p. 136: R. v. Ewanchuk, at para. 82 per L’Heureux-Dube; R. v. D. (D.) (2000), 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 60-63 per Major J.; R. v. Find, 2001 SCC 32, [2001] 3 S.C.R. 209, at paras. 101, 103; R v. Shearing, 2002 SCC 58, [2002] 3 SCR 33 at para 121.
[68] Insights into the myths and stereotypes which distort the understanding of sexual offence complainants have continued to evolve in recent years: see in particular R. v. A.R.J.D. 2017 ABCA 237, (2017) 353 C.C.C. (3d) 1, aff’d 2018 SCC 6; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390. The Ontario Court of Appeal has in several recent judgments been critical of trial judges falling into archaic and stereotypic thinking, ordering new trials for this reason: R. v. Lacombe 2019 ONCA 938; R. v. Cepic, 2019 ONCA 541, [2019] O.J. No. 3398; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634; R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170. Also see R. v. Senthamilselvan, 2019 ONSC 3884, [2019] O.J. No. 3483.
[69] The arguments in this trial illustrate how thinking in the area of sexual offences can fall into misleading generalizations blind to the true details of the evidence. The proposition put forward here is that Ms. B.H. is not credible because, on her own version of events, she did not do enough to prevent the sexual assault against her or to flee afterwards from the perpetrator, Mr. R.G. She did not notify the police when he contacted her.
[70] This is a variation of the theme debunked by the Alberta Court of Appeal in R. v. A.R.J.D (also see R. v. J.M., 2018 ONSC 344, 145 W.C.B. (2d) 98 at paras. 55-84). The jurisprudence emphasizes the importance of recognizing that the behaviour of sexual assault complainants should not be pigeonholed or evaluated against what is believed to be the “normal” way of acting in the situation. There is no rule book for a sexual assault complainant: R. v. Lacombe at para. 45; R. v. J.L. at para. 47; R. v. A.R.J.D. at paras. 42-43 (Alta.C.A.); R. v. D. (D.) at para 65; R. v. Kiss, 2018 ONCA 184, at para. 101.
[71] This trial is a case study in one facet of the problem. Generalizations and false analogies may obscure a failure to perceive the predicament in which a sexual offence complainant can find herself. When that is done in the case at hand, it can be seen that rather than behaving in a bizarre way, the complainant’s handling of the situation was completely understandable and rational. Careful attention to the facts and the imagination to see the situation from the complainant’s perspective are all that is required: see e.g. R. v. M.K., 2019 ONSC 2698 at paras. 14-17.
[72] Part of the problem here may well be a reflexive and quite erroneous analogy between a sexual assault and a simple assault. But a sexual assault bears little resemblance to a regular assault. In no other crime does consent--its presence or absence--play such a pivotal role in the characterization of the acts as criminal or non-criminal.
[73] Sexual offences are unique amongst criminal offences and the offences against the person in Part VIII of the Criminal Code for another reason. The harm caused is generally psychological harm, not the physical harm of the majority of the offences against the person. While an offence of violence, often the violence in a sexual offence is in the form of domination and of power.
[74] A person subjected to a beating might either fight back or attempt to flee. We understand the natural inclination for self-protection and preservation with this type of offence. A fight or flee instinct is the typical reaction.
[75] In sexual assault, there is very often a radical power imbalance between the attacker and the victim. The violence, as in this case, is often a silent, raging aggression which threatens overt violence but rarely inflicts it. It is a serious misunderstanding of the nature of sexual assault to expect a complainant to ferociously fight back to prevent the offence against her. Some may do so; but others will feel obligated to submit out of fear and paralysis.
[76] That brings us to the evidence in this case. Ms. B.H. testified that Mr. R.G. was menacing during the sexual assault. He said that she did not know who she was dealing with. He held her down and restrained her. Ms. B.H. was in fear during the sex act. Mr. R.G. was 19 years old; she was 14 years old. He is tall and powerful. Ms. B.H. was average in size and strength for her young age. Mr. R.G. was much bigger and stronger. For Ms. B.H. to have fought back against him would have been extremely foolhardy. Resistance could not possibly have been successful and had the real risk of antagonizing her assailant.
[77] The same was true in the aftermath of the offence. The immediate danger to her had subsided. It would have been an obvious mistake to attempt to flee from him. He was not an active danger to her on the bus or in the mall. If she had attempted to run, this would likely have signalled to him that she was planning to inform the authorities of what he had done. He had threatened her at the bus stop with what would happen if she alerted the authorities. There was no logical reason to run. The strategy she adopted of phoning a friend and enlisting him to protect her was a much better decision.
[78] These observations do not require a deep understanding of Ms. B.H.’s particular psychology. Outmoded thinking obscures what should otherwise be obvious. In fact in this case, Ms. B.H. testified to the obvious, explaining her unsuccessful resistance by saying that Mr. R.G. was aggressive and was bigger and stronger than she.
[79] The defence argument also ignores critical aspects of the dynamic between Mr. R.G. and Ms. B.H. They were close friends, having bonded over their love and respect for a friend who had died tragically at a young age. Their grief had brought them together.
[80] Ms. B.H.’s mother had told her to stay away from Mr. R.G. Ms. B.H. had not listened to her mother. She was spending a lot of time with Mr. R.G. and lying to her mother about it.
[81] His act of aggression and sexual exploitation against her transformed Mr. R.G. from a trusted friend into a serious threat to her well-being. Her mother had been right.
[82] What Mr. R.G. did, masquerading as her friend, was confounding and deeply perplexing. Betrayal on this level is profoundly disturbing and strikes at the core of the victim’s psyche. Clearly, Ms. B.H., quite ingenuous in the first place, was in shock.
[83] Taking account of the physical power imbalance, the difference in their ages, the sudden and shocking breach of trust alleged, and the guilt produced by not following her mother’s advice to stay away from Mr. R.G., Ms. B.H.’s reaction not to do more than she did was an entirely reasonable response. Of the options available, it was the safest way to conduct herself. Shock brought about by her trusted friend’s depersonalizing act of violence against her, breaching her bodily autonomy and integrity, also played a significant role in her behavior.
[84] I conclude that Ms. B.H.’s credibility was not adversely affected by her behaviour during or after the incident as argued by the defence.
VII. Conclusion
[85] Based on her credibility and the confirmation of her evidence, I am convinced beyond a reasonable doubt that Ms. B.H. was telling the truth and that Mr. R.G. had sexual intercourse with her against her will and without her consent on June 2, 2017.
[86] With respect to the subsidiary issues, based on my finding with respect to her credibility, I am convinced beyond a reasonable doubt that Mr. R.G. did threaten Ms. B.H. at the bus stop, saying that he would put “a cap in everyone’s ass.” However, the count was particularized as a threat against Ms. B.H. Although it is likely that she was included in the “everyone”, I am not convinced of that beyond a reasonable doubt. He will be found not guilty of count 3.
[87] With respect to the touching of Ms. B.H.’s upper, inner thigh over her shorts charged as sexual assault and sexual interference allegedly committed on August 15, 2017, I am not convinced of the sexual nature of this act: see R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 at p. 302. The included offence of assault was not argued, and, in any case, I think it would be inappropriate to find guilt on that basis. Mr. R.G. is found not guilty of counts 4 and 5.
[88] The indictment will be endorsed with not guilty verdicts on counts 3, 4 and 5. The sentencing will proceed on the basis that the sexual intercourse on June 2, 2017 was without Ms. B.H.’s consent.
D.E. HARRIS J.
DATE: February 6, 2020
COURT FILE NO: CR-18-1300
DATE: 2020 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
R.G.
REASONS FOR JUDGMENT
D.E. HARRIS J.
Released: February 6, 2020