COURT FILE NO.: CR-19-166 DATE: 2021 03 15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – C.M. Accused

Counsel: Ms. C. Eastwood, for the Crown Ms. J. Khou, for the Accused

HEARD: March 1, 2, and 3, 2021

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

The Charge

[ 1 ] C.M. is charged with one count – that he sexually assaulted X.Y. (not the complainant’s actual initials), contrary to section 271 of the Criminal Code (“CCC”). To respect the publication bans that have been issued, I will not set out the date or the place of the alleged offence.

[ 2 ] Henceforth, C.M. is referred to as the “accused”, and X.Y. as the “complainant”.

The Essential Elements of the Charge of Sexual Assault

[ 3 ] Sexual assault has four essential elements: (i) the intentional application of force by the accused to the complainant, (ii) without consent, (iii) the accused knowing that the complainant was not consenting, and (iv) the force being applied in circumstances of a sexual nature.

The Burden and the Standard of Proof

[ 4 ] All four essential elements of the offence must be proven by the Crown. And each essential element must be proven beyond a reasonable doubt. Otherwise, an acquittal results.

[ 5 ] The burden of proof rests entirely with the Crown. It never shifts to the accused. There is no burden on the accused to prove anything. The accused is presumed to be innocent of the charge.

[ 6 ] A reasonable doubt is not one that is based on sympathy or prejudice. A reasonable doubt is also not an imaginary or a frivolous doubt. Rather, it is based on reason and common sense. It is logically connected to the evidence or the lack of evidence.

[ 7 ] Proof beyond a reasonable doubt does not mean proof to an absolute certainty, but it is also more than proof of likely or probable guilt. It lies closer to absolute certainty than it does to the civil standard of proof on a balance of probabilities. Unless this Court is sure that the accused is guilty, he must be acquitted.

The Evidence of the Accused

[ 8 ] Where the accused testifies, as here, and where the accused’s evidence is exculpatory, if that evidence is accepted then the accused must be acquitted. Where that evidence is not accepted but, in the context of the evidence as a whole, it leaves the Court with a reasonable doubt about the guilt of the accused, then the accused must be acquitted. Where that evidence is neither accepted nor leaves the Court with a reasonable doubt, the accused must nevertheless be found not guilty unless the rest of the evidence at trial that the Court does accept proves the guilt of the accused beyond a reasonable doubt.

[ 9 ] In a case, as here, where there are very different versions of events put forward by the complainant and the accused, the Court must avoid the temptation to simply compare them and then choose one of them. That runs contrary to the fundamental principles of criminal law described above.

[ 10 ] It can be difficult for a trier of fact to apply the WD instruction in a case where the evidence of the accused is, arguably, partially inculpatory and partially exculpatory. I return to this point later in these Reasons. For now, it is important to recognize that the Court may accept all, some, or none of a witness’ evidence, and that includes the accused.

The Trial

[ 11 ] This was a two-day judge-alone trial, held via Zoom, plus closing submissions. Just one exhibit was filed – a diagram of injuries to the complainant’s vaginal area, taken from the Sexual Assault Examination Kit. Several admissions were made at the commencement of the trial – date, jurisdiction, identity, that the complainant and the accused knew each other prior to the alleged offence date, and that the two of them had sexual intercourse on the date in question. The Crown called two witnesses at trial: the complainant and the complainant’s sister. The Defence called three witnesses at trial: the accused, a young lady named S., and the accused’s mother.

The Issue

[ 12 ] As both counsel expressly stated in their closing submissions, there is only one issue – consent. Further, as both counsel acknowledged, whether the Crown has proven the absence of consent beyond a reasonable doubt depends on this Court’s assessment of the credibility and reliability of the witnesses, mainly the complainant and the accused.

[ 13 ] I pause here to say something about the law of consent, although this was not a contentious point among counsel at trial. Consent may be communicated through words, or actions, or both. Consent depends upon the “subjective mental state” of the complainant, in this case the state of mind of X.Y. Valid consent requires an actual choice, freely made, to participate in the specific sexual activity in question. Put another way, it requires a truly voluntary agreement on behalf of the complainant, at the time, to engage in the sexual act. R. v. P.D.C., 2021 ONCA 134, at paragraphs 72 through 80.

II. Analysis

A Brief Summary of the Evidence of the Complainant

[ 14 ] The complainant is 25 years old. She has a mild intellectual disability.

[ 15 ] According to the complainant, on the date in question, after seeing the accused at Tim Horton’s, they walked to his place. She had known the accused for a few months, and she described him as a “friend” or “acquaintance”. Once inside his apartment, he put his dog away and gave her a tour. He then, in the words of the complainant, “pushes” her on the couch and “attacks” her.

[ 16 ] More specifically, he climbed on top of her on the couch. She told him to get off. He grabbed her hands and put them above her head. “Just let it happen; just let it happen”, he said. He took off her pants and underwear. He took off his pants. He started to “finger” her. “I don’t want this; get off me”, she said. “Shush; just let it happen”, he said. Then he penetrated her vagina with his penis. “Let me go; stop”, she said. He did not stop. “Just let it happen; nobody will hear you scream; it will be over soon”, he said. She felt disgusted and was in shock. She tried to get off but could not move. She did not consent. Her hands were restrained the whole time. She is not sure if he ejaculated. During the sexual intercourse, he also sucked on her breasts, while she continued to say “get off me”.

[ 17 ] After the assault, they went to Tim Horton’s and then on from there.

A Brief Summary of the Evidence of the Accused

[ 18 ] It would appear that the accused is around the same age as the complainant, but I am unsure of that. He described his relationship with the complainant as “friends with benefits”.

[ 19 ] On the date in question, inside his apartment, according to the accused, the following occurred. They were kissing each other. He then showed her around. Then she went to the bathroom. After that, near the couch, they kissed again. He asked her about a discussion they had the night before, and she replied “I’m not sure”. More kissing and touching ensued, both ways. He guided her down onto the couch. More kissing occurred. He placed both of his hands on both of her hands, above her head. They were still kissing. He rubbed his penis between her “vaginal lips”. He asked “can I put it in?”, to which she said “I’m not sure”. They continued to kiss. There was more rubbing of his penis on her vagina. He “fingered” her. He then asked “can I put it in?”, to which she replied “okay”. Sexual intercourse then took place for about 45 seconds (the length of three TikTok videos, he said). She said “that’s enough”, so they continued some foreplay, and that was essentially the end of the sexual encounter.

[ 20 ] The accused later clarified that, while he was still standing and she was on the couch, he pulled out his penis, and she “played” with it.

[ 21 ] The accused denied that the complainant’s hands were restrained during the sexual intercourse. He stated that she never said “no”. She never tried to push him off. He believed the intercourse was on consent.

A Brief Summary of the Evidence of the Other Witnesses

[ 22 ] The complainant’s sister testified that she saw and spoke with the complainant on the alleged offence date, later in the day, after the alleged assault. The complainant seemed to be “in shock” and, when they called the police that same day, the complainant was crying and was “really, really upset”.

[ 23 ] S. was with the sister when they both saw and spoke with the complainant later on the alleged offence date. S., however, testified that the complainant was “completely normal”.

[ 24 ] The accused’s mother testified that she had met the complainant about four times before the alleged offence date, and had seen her many times at the complainant’s workplace, and had driven the complainant and the accused from Tim Horton’s to the Royal Bank during the afternoon on the alleged offence date, after the alleged assault. According to the mother, the complainant was her normal self and “bubbly”.

[ 25 ] The evidence of these three witnesses was, even taken collectively, very brief. Less than thirty minutes for the complainant’s sister, direct and cross-examination combined. About the same for S. About the same or less for the accused’s mother.

An Assessment of the Credibility and Reliability of the Witnesses

[ 26 ] I begin with an overall statement pertaining to each witness. Then I will expand on each.

[ 27 ] Overall, I do not trust the evidence of the complainant or that of the accused. I believe the complainant’s sister. I do not believe S. I believe the accused’s mother.

[ 28 ] The following are some of the items that give this Court serious concern about the evidence of the complainant: (i) her admission in cross-examination at trial, “I have a really bad memory”, such that today it is possible that she can remember only bits and pieces of what happened just yesterday; (ii) her admission in cross-examination at trial that her bad memory existed at the time of the alleged offence; (iii) her admission in cross-examination at trial that she cannot remember if her mother died before or after the alleged offence – “it’s blurry”, she said; (iv) her admission in cross-examination at trial that she never told the police initially that the accused was biting and kissing her before he pushed her onto the couch, but she did say that in her second police statement; (v) her comment in cross-examination at trial that it is a “lie” to suggest that she used the bathroom at the accused’s apartment, which comment was followed almost immediately by her saying that she may have used the bathroom because she had drank a lot of coffee and water that day; (vi) her comment in cross-examination at trial that she knows that the accused did not wear a condom because she felt it, as opposed to seeing it, but in her police statement she had stated that she saw it; (vii) her admission in cross-examination at trial that she is concerned that there are things that happened on the day of the alleged offence that she does not remember; (viii) her comment to the police officer in her second statement that she never sent pictures of herself to the accused (the question was “have you ever sent pictures of yourself?”, and her answer was “no”), juxtaposed against her evidence in cross-examination at trial that she did send him a photo but nothing sexual, which photo she only remembered a couple of weeks before the trial when a lawyer specifically asked her about it; (ix) her admission in cross-examination at trial that she never told the police initially that she told the accused to stop, or to get off, or that she tried to push him off; (x) her admission in cross-examination at trial that she never told the police that the accused said “just let it happen”, which comment she said that she just remembered while testifying at trial; (xi) her statement in cross-examination at trial that her memory has gotten better over time because she has “recovered” memories of the alleged incident, and her comments that her “recovered memories” are always true, and they happen often, and they are triggered by things like panic attacks; (xii) her admission in cross-examination at trial that she never told the police that the accused said “nobody will hear you scream” or “it will be over soon”; (xiii) her comment in cross-examination at trial that there was “a lot” of blood and she had bruises inside her, and that she had forgot about those things when she was asked by the Crown in direct examination at trial whether she had any injuries, and then her later comment in cross-examination at trial that she did not see any blood but was only told of some bleeding at the hospital during the examination; (xiv) her admission in cross-examination at trial that she did not tell the police initially that she told the accused “no” because she only remembered that she said “no”, and said “no” many times during the incident, when she gave her second statement to the police, a week later; (xv) her related admission in cross-examination at trial that she first remembered saying “no” on the date of her second statement to the police, which statement was given one week after the incident; (xvi) her evidence at trial that the accused had thrown 5-10 rocks at her and 2-3 sticks at her after they left his apartment and while they were walking to Tim Horton’s, which abuse “hurt a lot” and probably gave her some red marks on her body, but she never told the police about any of that because she could not remember any of that on the two dates that she spoke to the police; (xvii) her admission in cross-examination at trial that she just remembered during the cross-examination that they did go to a convenience store sometime after the incident; (xviii) her admission in cross-examination at trial that her memory has been “damaged” since the death of her mother, which passing occurred during the same year as the alleged offence; and (xix) her evidence at trial about whether she was in the company of the accused and his mother sometime shortly after the incident, which evidence appears to be totally at odds with the evidence of the accused’s mother, which latter evidence I accept.

[ 29 ] Not any one of the above items would cause this Court to reject or even doubt the evidence of the complainant that she did not consent to any sexual activity with the accused on the date in question. Nor would a few of them. Collectively, however, they cause this Court to wonder how reliable her evidence on that key issue is. After careful reflection, notwithstanding that the complainant may very well have been in shock in the near aftermath of the alleged attack on her, which explanation she offered many times during her testimony at trial as to why her evidence has changed, and notwithstanding that she was a polite, well-spoken witness who appeared to be doing her very best to help this Court understand what happened inside that apartment, I have concluded that I cannot rely on her evidence on the key issue at trial, that of consent.

[ 30 ] As for the evidence of the accused, I find it to also be generally unreliable. In cross-examination at trial, the Crown skillfully unearthed a number of inconsistencies in his evidence, some rather trivial but others quite material.

[ 31 ] Examples of relatively unimportant items are (i) that the accused had his dates messed up when he spoke to the police, and (ii) that he never told the police that he saw the complainant twice on the day before the incident, which he testified to at trial.

[ 32 ] Examples of more material shortcomings are (i) that he omitted entirely from his direct evidence at trial, which was very detailed and chronological, the whole business about him putting the complainant’s hand on his penis, over his pants, when she was on the couch and he was still standing up near the couch, and then he pulled out his bare penis, and then he placed her hand on his bare penis, and (ii) that he seemed uncertain at trial on the question of whether he sucked the complainant’s breasts during the sexual encounter, yet he swore in a previous affidavit that he did so, and (iii) that he never mentioned in that affidavit, which was quite detailed, that she touched his bare penis when he was standing near the couch, and (iv) that he never told the police in his statement that the complainant was moaning with pleasure and not complaining and clearly enjoying the sexual activity, yet he swore to all of those things in his prior affidavit.

[ 33 ] In addition, I am deeply troubled by something that the accused said to the Crown in cross-examination at trial. After acknowledging that he did not ask the complainant if he could touch her vagina, or if he could “finger” her, or if she would touch his penis, he remarked “but she never pulled away”, and then he added that they had done those things before so, presumably, it was unnecessary to ask her on the date in question.

[ 34 ] Let me be very clear to this accused and to all those who may find themselves in a similar position. You don’t simply do whatever you feel like unless and until the other person, to whom you should be showing respect during such an intimate encounter, “pulls away”.

[ 35 ] Further, that the two of them may have done similar sexual things in the past was clearly inadmissible at trial on the issue of whether the complainant consented on the date in question, and the accused knew that because of this Court’s pre-trial ruling. Once a consenter, always a consenter – thankfully, we have moved well beyond that kind of barbaric thinking. Section 276(1)(a) expressly tells us so.

[ 36 ] I was impressed with the politeness and the responsiveness of the accused at trial, but I was not at all impressed with his evidence on the key issue of consent.

[ 37 ] As for the other witnesses who testified at trial, I believe the complainant’s sister as her evidence suffers from no inconsistencies, whether internally or when viewed in conjunction with any other evidence at trial that I do accept. Based on her evidence, I find as facts that the complainant did appear to be in some state of shock when the sister saw the complainant later on the day of the alleged offence, and that the complainant had really big eyes and was stuttering and shaking a little bit.

[ 38 ] I reject the evidence of S. because she clearly lied to the police, or she lied to this Court, about the complainant’s demeanour later on the alleged offence date, and I do not find any merit in her explanation that she falsely told the police that the complainant was “very upset” because she felt threatened or intimidated by the complainant and her sister.

[ 39 ] Finally, I accept the evidence of the accused’s mother. It makes sense that she knows for sure that it was on the alleged offence date that she was with her son and the complainant at Tim Horton’s and then drove them to the bank because that was the same day that she got a doctor’s note to give to her employer about her migraine headaches. Further, it is not necessarily inconsistent that she describes the complainant as “totally normal” but yet the complainant’s sister describes different demeanour as those observations were made at different times and at different places, and plus the accused’s mother clearly does not know the complainant to the extent that the complainant’s sister does.

What Does all of this Mean for the Verdict?

[ 40 ] The evidence of S. does nothing to assist this Court. The evidence of the complainant’s sister, although I accept it, means very little. It could amount to circumstantial evidence in support of the complainant having been sexually assaulted by the accused, and thus in a state of shock, but I would not draw that inference given the totality of the evidence before me. Similarly, the evidence of the accused’s mother, although I accept it, means very little. It could amount to circumstantial evidence in support of the complainant having had consensual sexual relations with the accused, and thus be her “normal” self, whatever that means, but I would also not draw that inference given the totality of the evidence before me. I think that both inferences, with respect, are precarious invitations for this Court to place too much weight on demeanour and to play amateur psychologist.

[ 41 ] The case boils down to the evidence of the two main witnesses, the complainant and the accused.

[ 42 ] To be frank, I am not at all sure what happened in that apartment. They had sex. That is for certain. Some sexual activity preceded the intercourse; that just makes common sense. Otherwise, I find myself unable to make the necessary findings of fact.

[ 43 ] I am not sure whether the complainant consented to the sexual intercourse or not. She says that she did not, but her evidence, with respect, is unreliable. He says that she did, but his evidence, with respect, is also unreliable.

[ 44 ] As I alluded to both counsel during their closing submissions, however, this Court could still find the accused guilty of the offence based on pre-intercourse sexual activity. The complainant says that she did not consent to any of that either, but again her evidence is unreliable. The accused’s evidence presents the Court with a quandary. This is what I referred to earlier in these Reasons about the application of the WD framework in a case where the accused’s own evidence is, arguably, partially inculpatory.

[ 45 ] There are parts of his evidence that, if accepted by this Court, lead to a finding of a lack of consent, and that evidence is highlighted above (see paragraphs 32 and 33 herein). There are other parts of his evidence, however, that, if accepted by this Court, could contribute to a reasonable doubt as to whether the complainant communicated her valid consent through her actions, such as mutual kissing, and then more mutual kissing and mutual touching in a sexual manner, and then further mutual kissing after she was on the couch, and then her keeping her hand on his penis once put there, and then her proceeding to “play” with his penis on her own accord, and so on.

[ 46 ] The difficulty with parsing the accused’s evidence in this fashion is that it is an artificial exercise. As tempting as it is to do, because I think that this accused does not have a proper respect for the law of consent, it would require this Court to cling only to inculpatory aspects of an unreliable accused’s evidence while ignoring the exculpatory aspects of that same unreliable accused’s evidence, and then draw a straight line from those inculpatory parts to a conclusion that they amount to proof beyond a reasonable doubt that the complainant did not consent to the pre-intercourse sexual activity.

[ 47 ] I raised this possibility, and the Crown very appropriately made smart submissions that are not without merit. I have decided not to concur with them, however.

[ 48 ] Taking it all in, I am left with a reasonable doubt on the issue of consent, and that reasonable doubt applies not only to the intercourse but to all of the sexual activity that occurred between the accused and the complainant in that apartment on that day.

[ 49 ] Hence, I find the accused not guilty.

[ 50 ] I want to close by thanking Ms. Eastwood and Ms. Khou for their able assistance with this matter.

(“ Original signed by ”) Conlan J.

Released: March 15, 2021