COURT FILE NO.: CR-19-00000031
DATE: 20210416
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
P.M.C.
Defendant
Holly Chiavetti, for the Crown
J. David Crowe, for the Defendant
HEARD at Kingston: 6 and 8 April 2021 by video conference
THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
Reasons for judgment
MEW J. (orally)
[1] P.M.C. is charged with three counts of assault and one count of sexual assault against K.S. These alleged incidents occurred while P.M.C. and K.S. were intimate partners cohabiting with each other.
[2] Their relationship, which has produced two children, was a tumultuous one. It was a rare day which went by without an argument. Their arguments often became slanging matches, brimming with insults and profanities. Sometimes these arguments occurred in front of the children. Sometimes they became animated. And allegedly, on occasions, they became violent.
[3] The only witnesses at the trial, the evidentiary portion of which was completed in a single day, were K.S. and P.M.C.. The Crown also tendered as part of its case a videotaped interview of P.M.C. which was conducted on 3 May 2018.
[4] In this, as in any criminal case, a person accused of a crime is presumed innocent. That presumption can only be displaced if the Crown proves the guilt of the accused person beyond a reasonable doubt.
[5] Proof beyond a reasonable doubt does not mean proof to a standard of absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.
[6] The trial of charges which include violence between domestic partners and sexual abuse often comes down to the word of one person against the other — the so-called “he said/she said” scenario. The instruction provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 militates against turning the fact-finding exercise into a credibility contest between the complainant and the accused.
[7] Instead, the analytical process established by W.(D.), applied to this case, requires me to ask and answer these questions with respect to each and every charge:
Do I believe P.M.C.’s evidence? If I do, I must acquit him.
If I do not believe the evidence of P.M.C., but I am left in reasonable doubt by it, I must acquit him.
Even if I am not left in doubt by P.M.C.’s testimony, am I convinced beyond a reasonable doubt of the guilt of P.M.C. on the basis of the evidence which I do accept?
[8] P.M.C. and K.S. both recall the three incidents which give rise to the three assault charges. However, their recollections of what occurred are different.
[9] Significantly, however, P.M.C. does not dispute that there was physical contact between him and K.S. on each occasion. However, he denies having assaulted K.S., asserting that he did not apply force to her intentionally.
[10] The offence of what is often referred to as “common” assault is defined in section 265(1)(a) of the Criminal Code as occurring when, without the consent of another person, an individual applies force intentionally to that other person, directly or indirectly.
[11] The first incident occurred in what was referred to during the course of the evidence as the Kingsdale apartment. P.M.C., K.S. and their children were living there at the time. The incident occurred in a hallway linking two bedrooms, a bathroom and the living room. There had been an argument. The parties could not remember what it was about or how long it had been going on for, although P.M.C. said that normally they argued about finances. P.M.C. acknowledges that it was getting heated. According to him, the argument was not going anywhere, and he wanted to leave.
[12] The hallway was quite narrow. P.M.C. said that K.S. was in his way. He was upset and wanted to get away from K.S. and the argument.
[13] K.S. says that P.M.C. told her to “get out of the way” and then shoved her against the wall in an aggressive manner, applying his forearm, initially to her chest and then moving up to her neck. The pressure which he applied made it hard for her to breathe. She said P.M.C.’s face was red with anger and that she was petrified.
[14] P.M.C. concedes that it was more than likely that his forearm made contact with K.S.’s chest as he walked by her. But he denies any intention to harm her. He was just trying, to use his words, to “remove her” from his path. He does not consider it possible that he applied force or that his forearm moved up to the area of her neck.
[15] Within 10 to 20 minutes after the incident, K.S. took some photographs of her chest and neck. These photographs show red marks in the places that she testified the defendant’s forearm made contact with her. The defence questions whether these red marks were caused by P.M.C.. He says that they could have represented what he described as “anger redness”, explaining that sometimes K.S. would “blush out” when she got flustered.
[16] Even on the basis of the account given by P.M.C., I am satisfied that the elements of the offence of assault are made out in respect of this incident. The contact which occurred cannot be said to have been incidental or accidental. It was necessary for P.M.C. to make contact with K.S. in order to get past her. To use his own terminology, he had to remove her. This required the application of force. That force was applied knowingly and directly. There is nothing in the evidence to suggest that K.S. consented to the application of any force by P.M.C..
[17] While, as I have said, P.M.C.’s evidence alone would be sufficient to register a conviction, his account of what happened seeks to minimise the force involved and, hence, the severity of his conduct. I accept the evidence of K.S. as to what occurred. It is corroborated by the photographs that she took. P.M.C. pushed her back against the wall in an aggressive manner with his forearm and the force of that contact, both against the chest and then migrating up to the neck, was sufficient to leave red marks which were still visible 10 to 20 minutes later.
[18] Other than a subsequent “I’m sorry” from P.M.C., the incident was not discussed again. K.S. did not report it. She explained that this was, in part at least, because she always hoped that things would get better.
[19] The second incident occurred at a home on Compton Street which K.S. and P.M.C. had, by then, moved to. There had been an argument earlier in the day, following which P.M.C. had retreated to the basement. K.S. was upstairs in the kitchen making dinner for the children who were seated at the table. P.M.C. came up to the kitchen wanting, according to K.S., to continue with the argument. Neither she nor P.M.C. can remember what the argument was about. She says that his tone was getting more aggressive and that she asked him “please, can we do this later”. P.M.C. concedes that it is possible that K.S. said this or something like it. He also acknowledged that he was not mature enough to back off. K.S. said that she tried to diffuse things with a joke. She acknowledges, with the benefit of hindsight, that this was not a proper response. She then flipped the peak of the hat that he was wearing with the back of her hand. She denies that, in doing this, she made any contact with his face. P.M.C., on the other hand, says that she did make contact with his face, although he accepts that she likely did so accidentally.
[20] P.M.C. responded by hitting K.S. in the face. She says that he punched her with a closed fist, hitting her high on her cheek towards her left eye. He says that he slapped her with an open hand. He described this as an “instant muscle reaction”, for which he immediately apologized and felt horrible.
[21] On this occasion, there were no photographs taken. K.S. says that she wanted to telephone her parents, but that P.M.C. threatened her, saying that if she called anyone she would be arrested and would not be able to have her children. K.S. acknowledges that P.M.C. did apologize, but she says that his tone remained aggressive, and that he told her that she had hit him first. According to her, he is also said “if I’m going away, you’re going away”.
[22] Again, the account given by P.M.C. concerning the second incident is, by itself, sufficient to support of a finding of guilt on the charge of assault. Hitting someone instinctively is not a defence in law. Indeed, the common law has never recognised “irresistible impulse” as a defence, even when arising from insanity, which is obviously not the case here. It is not necessary for me to decide whether I prefer P.M.C.’s account that he struck K.S. with an open hand, rather than her evidence that he punched her with a closed fist. However, I accept the evidence that P.M.C.’s general demeanour was aggressive and that he sought to deflect responsibility for his actions by maintaining that K.S. had hit him when, even on his own account, she had, at worst, made accidental contact with his face as she tipped up the peak of his cap.
[23] The third incident occurred in the basement of the Compton Street residence. Once again, P.M.C. and K.S. were arguing. Once again, P.M.C. says that he had tired of the argument and wanted to leave. Once again, he claims that K.S. was blocking his way. In his words, “she had me cornered”. He says that his only option was to walk past her. He concedes that as long as K.S. was standing where she was, he could not do that without making physical contact with her. K.S. says that, instead of walking around her, P.M.C. grabbed her by her clothes and threw her to the floor. She landed on her right side. According to her, she immediately told P.M.C. “that really hurt” and asked him “why did you do that?”. She says he responded, “you were in my way”. She claims that he stood over her, for a period of time, before moving away. K.S. said she remained on the floor for a long time. When she eventually got to her feet, she did not seek medical attention or report the incident.
[24] P.M.C. has a different recollection. In cross-examination, he eventually conceded that he pushed his way through. Perhaps, he says, she lost her balance and then fell. He claims he does not know because he left the room as soon as he walked past her and went upstairs for at least half an hour before he next saw K.S..
[25] Yet again, P.M.C.’s concession that he pushed his way through or, as he agreed when it was put to him, shoved K.S. out of the way, supports a conviction for assault. Again, it is not necessary for me to determine whether K.S. was thrown to the ground, as she testified, or shoved as P.M.C. walked past her. But P.M.C.’s assertion that K.S. may have lost her balance, but he does not know, because in the time that it took for her to lose her balance, he had already moved on and was heading upstairs, is not plausible. I am quite satisfied that he knows that she fell down and that he did nothing to assist her.
[26] To recap, there will be convictions on each of the assault charges.
[27] The charge of sexual assault is a single global count covering a charging period of 1 December 2017 – 30 April 2018. This was towards the end of the relationship and, according to K.S., she had already told P.M.C. that the relationship was over. Up until September 2017, the sexual activities engaged in by P.M.C. and K.S. included incidents of sexual touching and intercourse where the activity started while K.S. was asleep. P.M.C. said that both he and K.S. engaged in this practice, which he identified as “somnophilia”. At one point in his police interview, he referred to this as a fetish. When asked to describe it, he said that it was “borderline rape”, but quickly explained that was a misunderstanding of the practice, which involves pleasuring someone while they are asleep. Almost like foreplay, he explained. He testified at trial that before the first time K.S. had slept at his house, he had told her that if she slept in his bed, this is what he ended up doing. He says that she said that she was into the same thing and that what he did, which would sometimes include elements of penetration with his hands or penis while she was asleep, was for her pleasure.
[28] P.M.C. acknowledges that, by (he says) the end of November or beginning of December 2017, he and K.S. had decided that they were no longer comfortable with this type of contact (K.S. says that conversation was in September 2017).
[29] K.S.’s evidence was that for approximately four months in an after December 2017, P.M.C. regularly came to her bed and had sexual contact with her in the manner just described. P.M.C., who did not routinely share a bed with K.S., preferring, because of medical issues that he had, to sleep on the couch, said that he would only come to K.S.’s bed when he was invited to do so.
[30] According to K.S., there were multiple occasions during the period charged when she would awake in the night to find P.M.C. engaging in sexual activity with her. She explained that she regularly used marijuana to help her sleep. She says that if she was awakened as a result of P.M.C.’s activities, she would either push him off or say and do nothing and let it happen. There was no conversation, but she said that afterwards when challenged, he would say things like “you were awake and consented” or “you said it was okay” and that this was the life that she had chosen and she needed to deal with it.
[31] She described how, one morning, she had woken up late and quickly went to work. Once there, she went to the bathroom. In the course of wiping herself, she realized that there was semen present. She had no recollection of having had sexual intercourse during the night immediately preceding that discovery. She intended to ask P.M.C. about it when she got home after work. But he had a friend there so the opportunity did not arise. That night, she says, P.M.C. tried again, but K.S. woke up and told him “no”. She says that the next morning she yelled at P.M.C. “you need to stop doing that” and that he responded, “you consented the night before”. K.S. regards that comment as confirming that the semen that she had discovered the morning before was the product of P.M.C. having had sex with her while she was asleep.
[32] K.S. could not pinpoint when this incident occurred, other than to say it was after September 2017. She does, however, recall that the last time prior to P.M.C. being charged, she had woken up and felt him in her vaginal area. She had started to hit him with both fists before getting up and going to sit on the couch where she cried. Although K.S. could see that P.M.C. was shocked that she was hitting him, nothing further was said at the time, or subsequently.
[33] P.M.C. does not recall this incident. He does not recall K.S. hitting him at any time, other than the hat incident.
[34] There was at least one incident that, based on both the police interview and P.M.C.’s testimony at trial, did occur in December 2017. As described in his police interview, he had been engaging in sexual activity with K.S., believing her to be awake, but was subsequently informed that she was not. Asked about the incident during cross-examination at trial, P.M.C. initially said that there had been an instant when he thought she had been awake but found out that she was not but also said that he and K.S. had had a conversation before it started and engaged in intercourse to which she consented. He said that what had been described in the police interview was a form of foreplay, the idea being that if she woke up, they would take it from there. Otherwise, it would just be a “little bit of play and stop”. He said, “it was all about her pleasure”, “about seeing her happy”. When the Crown Attorney questioned making her happy while she was asleep, P.M.C. conceded that it was hard to describe. Questioned further about what P.M.C. described as positive reactions to being touched while K.S. slept, he responded “the subconscious – you can still see a smile – happiness”, or words to that effect. P.M.C. conceded that he knew that this predilection was controversial and that some people considered it rape. He said that he and K.S. had tried to discuss it a couple of times, but it got shut down, or veered off to a different subject. He acknowledged that, in retrospect, they had not discussed this carefully enough.
[35] An appropriate starting point to a discussion of this evidence is section 273.1 of the Criminal Code. Subsection 1.1 provides that consent must be present at the time the sexual activity in question takes place. Subparagraph 2 (a.1) provides that consent cannot be obtained if the complainant is unconscious.
[36] K.S. was unable to pinpoint dates when the sexual assaults she described occurred. She cannot, for example, say whether the incident when she discovered the presence of semen after going to the washroom occurred in or after December (her evidence being that it was after the discussion that she says she and P.M.C. had had in September about no longer engaging in sexual activity while she was asleep). She does, however, allege that there were multiple incidents in the December 2017 – April 2018 period, including the last occasion when she had pummelled P.M.C. with her fists and retreated to the couch crying.
[37] For his part, P.M.C. acknowledges at least one occasion in December 2017 when he engaged in sexual activity with K.S., believing her to be awake, but subsequently discovered that she had been asleep. The precise nature of this sexual activity was not fully explored at trial. But P.M.C.’s own evidence is sufficient to find that there was touching of a sexual nature. The issue then becomes whether there was consent.
[38] The defence appears to recognise that if the December 2017 event did, in fact, occur as described, it was after the “no more sleeping sex” discussion. However, the defence submits that P.M.C. should be believed when he says that he would only go to K.S.’s bed when invited to do so and that their pattern of sexual activity and, in particular, their methods of communicating nonverbally, would have caused him to believe that she was consenting.
[39] In an article entitled R. v. A. (J.) and the Risks of Advance Consent to Unconscious Sex (2010), 14 Can. Crim. L. Rev. 273, written before the Supreme Court’s decision in R. v. A. (J.), 2011 SCC 28, and the subsequent enactment of subsections 1.1 and 2 (a.1), Professor Hilary Young reviewed the law as it then was on the subject of advance consent to unconscious sex, including a discussion of somnophilia, which was described as “a documented paraphilia … in which sexual arousal is attained by waking a sleeping partner or stranger through non-violent erotic touching”. Even assuming that a sleeping partner would be someone with whom there had been advance consent, Professor Young recognised that the severity of the harms associated with an unconscious partner’s inability to monitor and communicate justify a legal prohibition against advance consent, ultimately concluding, at 305:
The possibility of unconsciousness leading to non-consensual sex, or to sex that was consensual but would have been refused but for unconsciousness, therefore represents a risk of serious harm to individuals and weighs against legally recognising advance consent to sex while unconscious in the sleep context.
[40] The subsequent amendments to the Code put to rest any doubts that may have existed about the possibility of advance consent in limited circumstances. Professor Young’s discussion has some resonance when the facts of the present case are considered.
[41] Even taking P.M.C.’s evidence on its face, he equivocates over the accusation that K.S. was asleep when he started a form of foreplay. That term suggests a sexual purpose, albeit that the extent of the touching on that occasion was not described in any detail. He says that he only subsequently learned that K.S. was asleep when this started.
[42] He also acknowledges that before December 2017, he and K.S. had agreed to stop engaging in “sleeping sex”.
[43] The Code now makes it clear that consent must be present when the sexual activity takes place. Consent must be communicated consent (R. v. Barton, 2019 SCC 33). An unconscious person cannot communicate her consent, no matter what the pattern of the previous sexual activity between the parties may have been. As the Supreme Court explained in R. v. A. (J.), at para. 47:
… there is no substitute for the complainant's actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant's consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault: R. v. Ewanchuk, [1999 CanLII 711 (SCC)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii711/1999canlii711.html), [1999] 1 S.C.R. 330, at para. [31]].
[44] P.M.C. had great difficulty explaining how, in the face of the mutual agreement, which he acknowledged, not to engage any more in “sleeping sex”, K.S. had nevertheless agreed to some form of sexual activity on the occasion in December that he described to the police and this court, when she might have been asleep. If the Crown’s questioning at times betrayed a sense of incredulity, particularly as P.M.C. explained how his actions were for the pleasure of his partner, rather than himself, her unconscious state notwithstanding, it was with good reason. His version of events does not make sense. Accordingly, I do not accept P.M.C.’s explanation of the sexual activity between him and K.S. in the relevant time period.
[45] Having so determined, I have nevertheless carefully considered whether, despite that, I am left with reasonable doubt about his guilt.
[46] In that regard, I found that K.S.’s evidence was straightforward and clear about what she did and did not remember. Her explanation for why she did not report the incidents of assault or sexual assault is plausible: she was afraid that P.M.C. would say or do things that would result in the involvement of Family and Children’s Services. She was also afraid of his volatile temper and constantly questioning whether she was somehow responsible for his behaviour.
[47] Although K.S. was not certain about dates or about the number of incidents that may have occurred, I accept her evidence that on one or more occasion between December 2017 and April 2018, she awoke to P.M.C. engaging in sexual activity with her. The occasion where she ended up hitting him was one such occasion. But I believe her when she says there were others.
[48] Indeed, setting aside his explanations, which I do not accept, the balance of P.M.C.’s own testimony also leads me to that conclusion.
[49] As a matter of law, in the circumstances described, the complainant could not have consented to the sexual activity which P.M.C. initiated. As a result, and inevitably, I am satisfied beyond a reasonable doubt that P.M.C. sexually assaulted K.S.. A finding of guilt on that charge will therefore be registered.
Mew J.
Handed down (orally): 16 April 2021
COURT FILE NO.: CR-19-00000031
DATE: 20210416
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
P.M.C.
Defendant
REASONS FOR JUDGMENT
Mew.
Handed down (orally): 16 April 2021