SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-SA5081

DATE: 2021/01/25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJETY THE QUEEN

Appellant

– and –

CODY SPICER

Respondent

Stephen Albers

Mark Ertel

HEARD via videoconference:

January 6, 2021

REASONS FOR DECISION

Pursuant to s. 486.4 of the Criminal Code there is a continuing order

in place making it an offence for any person to publish information

that might lead to disclosure of the identity of the complainant.

o’bonsawin J.

Introduction

[1] The complainant, LH, alleged that she was sexually assaulted by a co-worker, Mr. Spicer, in the men’s washroom at the Blue Cactus restaurant on or about February 6, 2018[1]. Mr. Spicer was charged with one count of sexual assault pursuant to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. On June 12, 2019, Graydon J. (“trial judge”) of the Ontario Court of Justice acquitted Mr. Spicer.

[2] The Crown raises the following issues on appeal:

1. The trial judge erred in using myth-based reasoning with respect to how a sexual assault victim “should” or “would” act; and

2. The trial judge erred in finding that, because LH accompanied Mr. Spicer to the washroom stall, she consented to any and all sexual activity that would take place therein.

[3] The Crown requests an Order instituting a new trial.

[4] For the following reasons, I allow the appeal.

Background Facts

[5] By way of facts, Mr. Spicer and LH participated in a staff party. At that time, LH was 18 years old and Mr. Spicer was 35. LH was 5’2 and weighed 120 lbs. Mr. Spicer was 6’4 and weighed 185 lbs. They worked together at the El Camino restaurant in the ByWard Market. LH’s sister also worked at the El Camino, but at the Elgin Street location. The party started at a bowling alley. LH was with her sister, MH, and Ms. Nox. Afterwards, LH, MH and two co-workers went to the Blue Cactus restaurant. They had drinks and one shot and were enjoying themselves. This was LH’s first time at the Blue Cactus.

[6] At one point in the evening, LH, a woman, used the men’s washroom at the Blue Cactus restaurant.

[7] LH alleged as follows. When LH was washing her hands, Mr. Spicer entered the men’s washroom and started making sexual comments about her appearance and her breasts, and he told her that she “looked really good” that night. It was alleged that Mr. Spicer then reached into LH’s shirt and touched her nipples. LH said “no”. Mr. Spicer then told LH to get into the washroom stall. LH said she felt intimidated and scared. Afterwards, both went into a washroom stall. LH testified: “At that point he just kind of cornered me in the stall, and I sit on the toilet and just put my legs up to prevent him from touching my chest”. Mr. Spicer then locked the door behind him at which time Mr. Spicer exposed his penis directly in front of LH’s face standing in front of the toilet. Mr. Spicer tried to push his penis in LH’s face and wanted LH to perform oral sex on him. She said “no” and he continued to masturbate himself off a little bit and tried to get LH to perform oral sex on him. LH alleges she was getting really upset. A co-worker entered the washroom and LH told Mr. Spicer that someone was in the washroom and Mr. Spicer told her not to say anything. The co-worker opened the stall door and looked inside, then walked out. Mr. Spicer’s penis was still out after the co-worker closed the door. LH was extremely agitated, and Slade, another co-worker, entered the washroom. She asked him: “Slade, is that you?” He said “yeah”, LH asked for help and he responded “oh, no, it’s fine. Find your sister”. LH then walked out and yelled out. Mr. Spicer then ran out.

Trial Judge’s Reasons

[8] In his oral Judgment, the trial judge assessed the evidence of the witnesses. He noted that the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, did not strictly apply to Mr. Spicer’s evidence which did not advance a mens rea type defence but gave evidence of an exculpatory nature on the issue of consent as did other witnesses. The trial judge noted that the court should have a reasonable doubt about whether consent was given at the time, date and place in question.

[9] The trial judge made the following findings of fact:

• At work, Mr. Spicer had referred to LH as cute and therefore she was not criticized for a workplace error.

• Neither LH nor Mr. Spicer knew that the other had entered the men’s washroom.

• LH knew her sister MH was nearby, and her colleagues were also nearby outside the washroom door.

• LH knew that her employer had a sexual harassment policy of zero tolerance and immediate dismissal upon proof.

• LH had consumed approximately five mixed drinks and a shot.

• When LH was about to leave the men’s washroom, Mr. Spicer entered.

• LH agreed with counsel that the first thing she said was “Oops, I guess I’m in the men’s washroom”. She added that in essence, she was apologizing for being in the men’s washroom. She admitted that she made the comment jokingly and Mr. Spicer laughed sort of jokingly.

• LH was a hostess at work, and the trial judge found that she was used to addressing people and she knew Mr. Spicer.

• The evidence did not reveal that LH was moving towards the nearby exit door as she jokingly laughed, nor did it reveal she was moving towards the exit door when Mr. Spicer said to her “that she looked really good tonight”.

• Mr. Spicer worked at El Camino and the Blue Cactus. He knew there was a crowd of people outside the men’s washroom door.

• LH first testified that Mr. Spicer told her to get into the washroom stall. She then materially changed her evidence to say that Mr. Spicer said, “let’s go into the bathroom stall”. The evidence of both LH and Mr. Spicer was consistent that he told her “let’s go into the bathroom stall”.

• When her manager saw LH after the incident between her and Mr. Spicer was reported to him, he testified that LH was visibly upset and visibly crying, that she was very upset, that she could not talk and therefore that staff friends of hers had to talk for her.

• The manager approached Mr. Spicer and asked him about what had occurred between the latter and LH. Mr. Spicer responded, “whatever they say happened, happened”. Then the manager specifically asked Mr. Spicer, “they’re saying you exposed yourself to [LH]”. Mr. Spicer responded, “whatever they said happened, happened”. The manager then terminated Mr. Spicer’s employment on the spot.

• Mr. Spicer felt guilty about what had happened in the washroom with LH because of his age, his size, and the fact that he and LH, a young lady, were unwise to have done what they did. He wanted to take the “hit for her” so that she did not get fired. Mr. Spicer got fired and LH did not.

• With regard to LH and her emotional state inside the men’s washroom, she knew how embarrassing it would have been for her. LH quit her job because “for her to face the public, to stay working, people knowing she’d been in the stall, so she quit” (Judgment, at p. 32).

• LH and Mr. Spicer were not in the men’s washroom very long; they were there a brief number of minutes rather than a lengthy period of time.

[10] Overall, the trial judge found that he had a reasonable doubt that Mr. Spicer reached into LH’s shirt and grabbed her nipples very shortly after entering the washroom. He based his decision on the fact that Mr. Spicer worked at the Blue Cactus and he knew that there was a crowd of people outside the men’s washroom. His grabbing her nipples would have occurred while they were standing in the open, in plain view for anyone to see who entered the washroom. “Reason and common sense suggest that CS would be aware that at any moment someone could enter the mens’ room to see CS fondling LH’s breasts. Reason and common sense suggest LH would be in the same predicament with what was happening being instantly misinterpreted, according to her” (Judgment, at p. 29). The trial judge indicated that due to the recent workplace sexual harassment training that the employees had recently undergone, zero tolerance was the “watchword”. “To be seen grabbing the breasts of LH could mean being reported. Being reported could mean dismissal, perhaps the same for LH” (Judgment, at p. 29). The trial judge found that LH’s material change in evidence about how she and Mr. Spicer got into the washroom stall left him with a reasonable doubt that LH did not give her consent to what happened in the stall and to how both of them ended up entering the stall together.

[11] The trial judge indicated that he preferred the evidence of the Blue Cactus manager as to how he learned of the incident, his observations of LH and what he did with the information he received. The manager testified that when he went to check on LH after he had been told there had been an incident between LH and Mr. Spicer, LH was visibly upset and visibly crying, that she was very upset, that she could not talk and therefore that staff friends of hers had to talk for her.

[12] The trial judge found that he had a reasonable doubt based on the way in which she had quit her job when she came out of the Blue Cactus: she was “so distraught over being embarrassed that staff members and colleagues, some of whom saw them in the stall together with CS’s pants down, but the mere fact that they were in the stall together would lead to wild speculation and misinterpretation in her mind” (Judgment, at p. 32).

[13] Finally, the trial judge found that he had reasonable doubt that Mr. Spicer committed the offence and “at the end of the day he purportedly saved her job by him taking the hit”. He found Mr. Spicer not guilty of the charge.

Positions of the Parties

[14] Firstly, the Crown takes the position that the trial judge erred in his findings that Mr. Spicer did not grope LH’s breasts prior to entering the washroom stall on the basis solely that “reason and common sense” would dictate that someone in Mr. Spicer’s position would not do this. At trial, this reasoning was not raised by anyone but the trial judge. It formed no part of Mr. Spicer’s testimony. In fact, the trial judge made a finding of fact with no evidentiary basis. Furthermore, this finding rests on myth-based reasoning predicated around the myth that sexual assaults happen only in private, with nobody around.

[15] Secondly, the Crown submits that the trial judge erred in his ruling that LH’s accompaniment of Mr. Spicer into the washroom stall constituted consent. The trial judge found that LH’s putting her hand into Mr. Spicer’s hand as they entered the washroom stall left him with a reasonable doubt that LH did not give her consent to what happened in the stall. This reasoning is in direct opposition to the Supreme Court of Canada’s holding in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, and is therefore an error of law.

[16] In response, the Defence argues that the trial judge did not utilize “myth-based reasoning” in his assessment of LH’s evidence for two reasons. First, the trial judge was entitled to draw inferences based on both LH’s and Mr. Spicer’s evidence. The trial judge never made judgments about the manner LH behaved or ought to have behaved. Second, the trial judge’s findings were based on the evidence heard at trial and were reasonable.

[17] The Defence’s second submission dovetails with the first. Based on the inferences the trial judge drew and his assessment of the sum of the evidence, he was left with a reasonable doubt about the absence of consent. The trial judge did not err in his application of the law on consent. Further, the inferences that the trial judge drew and the findings he made are owed significant deference, especially in cases involving an acquittal.

Analysis

[18] The Crown’s appeal from an acquittal is limited to only a question of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 39. Credibility findings are generally afforded great deference on appellate review; however, an error in legal principle affecting that assessment is an error of law: R. v. Luceno, 2015 ONCA 759, 341 O.A.C. 223, at para. 34.

[19] It is well established that trial judges and their factual findings are owed significant deference on appeal. In R. v. Panko, 2010 ONCA 660, 276 O.A.C. 49, at para. 18, the Court of Appeal for Ontario is instructive on the degree of deference owed to trial judges in Crown appeals:

[I]t is well-established that absent legal error, factual findings made by trial judges, even findings that would not be made by the judge called upon to decide an appeal, are entitled to significant deference on appeal. That principle, frequently applied in the context of conviction appeals, has added force where the Crown appeals an acquittal resting upon a trial judge’s conclusion that the evidence is not sufficient to prove the case beyond a reasonable doubt. This follows from the very nature of the concept of reasonable doubt, which rests upon a nuanced judgment about the sufficiency of the evidence rather than on the foundation of factual findings that is required to support a conviction.

[20] Trial judges can draw inferences derived from primary facts established in the evidence. Doherty J.A. noted that these inferences must be ones “which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 530.

[21] In J.M.H., at para. 39, the Supreme Court of Canada dealt with the issue of reasonable doubt. It noted that reasonable doubt does not have to be based on the evidence. It could arise from an absence of evidence or a failure of the evidence to persuade the trial judge to the requisite level of beyond a reasonable doubt. “It is only where a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted”: J.M.H., at para. 39.

[22] As noted by Pardu J.A. in R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5, reliance on stereotypical views about how victims of sexual assault would behave is an error of law: R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, aff’g 2017 ABCA 237, 55 Alta. L.R. (6th) 213.

[23] Trial judges are forbidden from making normative judgments based on stereotypical notions of a sexual assault complainant’s behaviour. The scope of human conduct is too vast to neatly categorize the way a complainant should or ought to act in a given scenario. While a trial judge is entitled to draw reasonable inferences based on evidence which she/he accepts, that inference-drawing process is bounded by the unreliability of stereotypical and myth-based reasoning. Reliance on stereotypical myths is a flagrant error of law: A.B.A., at paras. 5-8.

[24] In J.A., at para. 23, the Supreme Court indicated that “[a] person commits the actus reus [of sexual assault] if he touches another person in a sexual way without her consent.” In R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, the Supreme Court set out that the actus reus of sexual assault is made out where the victim of the sexual assault does not consent. This absence of consent test is purely subjective and is related only to the victim’s state of mind at the time of the alleged offence: Ewanchuk, at para. 26. At para. 27 of Ewanchuk, the Supreme Court stated: “[F]or the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.”

[25] The Supreme Court also noted that where there is no defence of honest but mistaken belief in consent, there is no “third” option: there is only consent, or a lack of consent. If the court subjectively believes that there was no consent, the offence is made out, as the Supreme Court indicated in Ewanchuk, at para. 31:

If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.

[26] In J.A., at para. 34, the Supreme Court further clarified consent with respect to s. 273.1(1):

Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question.” This 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. As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26). [Emphasis in original.]

[27] The Supreme Court also dealt with the concept of “advance consent” to a broad range of sexual activities. In J.A., the Court stated, at paras. 46-47:

The only relevant period of time for the complainant’s consent is while the touching is occurring: Ewanchuk, at para. 26. The complainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.

The jurisprudence of this Court also establishes that 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: Ewanchuk, at para. 31.

[28] The Supreme Court has cautioned numerous times that reliance on myths and stereotypes is to be avoided particularly in cases of sexual assault: R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 659-661, per L’Heureux-Dubé J. (dissenting in part); R. v. Goldfinch, 2019 SCC 38, at paras. 36-37.

[29] The Crown argues that it is a myth that sexual assaults always occur in private, where others cannot see. The Crown provided four cases to support its position. In R. v. Y.C.B., 2014 ONSC 3570, a teacher touched the students during demonstrations in front of the entire class of students. In R. v. R.E.M., 2001 BCPC 334, aff’d 2005 BCSC 80, a teacher cupped the students’ “bottoms” in front of other students. In R. v. Doodnaught, 2013 ONSC 8022, aff’d 2017 ONCA 781, an anesthesiologist sexually assaulted patients in an operating room theatre. And in R. v. Meeko, 2018 NUCJ 6, a teacher touched female students during class in front of others.

[30] The Crown submits that in A.B.A., at para. 17, the trial judge erred in an identical way as in this matter. In A.B.A., the trial judge acknowledged that sexual assault cases are not a credibility contest but nevertheless framed her analysis of both the complainant’s and the accused’s testimony around stereotypes of how a victim “should” act. In that case, “[t]he trial judge’s determination that she believed the respondent was inextricably linked to her assessment of the complainant’s credibility, which itself was fundamentally affected by legal error”: A.B.A., at para. 17. Furthermore, the Crown points out that more specifically, the Court of Appeal in A.B.A. noted the following error, at paras. 8 and 10:

Here too the trial judge instructed herself that “the expectation of how a victim of sexual assault will, or should, behave must not be assessed on the basis of stereotypes, generalizations and myths”: at para. 22. However, she then proceeded to adopt a “common sense” approach and negatively assess the complainant’s credibility based on a lack of correspondence between her behaviour and the behaviour one would expect of a person “who ha[d] been brutally sexually assaulted”.

Inherent in this approach is a comparison of the complainant’s behaviour to what the trial judge viewed was “appropriate” behaviour that the trial judge would have expected of an adult threatened with a sexual assault or a victim of sexual assault. The issue here was not what steps the complainant should have taken to protect herself, but, rather, whether she consented to sexual activity with the respondent.

Did the trial judge err in using myth-based reasoning with respect to how a sexual assault victim “should” or “would” act?

[31] On the one hand, it is the Crown’s position that the trial judge rejected LH’s testimony that Mr. Spicer grabbed her breasts before entering the stall. The trial judge made this finding based on the fact that Mr. Spicer knew that there was a crowd of people outside the men’s washroom. He highlighted that LH and Mr. Spicer were standing in the open, in plain view for anyone to see them when entering the men’s washroom. More specifically, he noted: “Reason and common sense suggest that CS would be aware that at any moment someone could enter the mens’ room to see CS fondling LH’s breasts. Reason and common sense suggest LH would be in the same predicament with what was happening being instantly misinterpreted, according to her” (Judgment, at p. 29). The trial judge also noted that the employees at El Camino had recently undergone workplace sexual harassment training and that there was zero tolerance. Being reported could mean dismissal.

[32] On the other hand, the Defence argues that the trial judge did not utilize “myth-based reasoning” in his assessment of LH’s evidence for two reasons. First, the trial judge was entitled to draw inferences based on both LH’s and Mr. Spicer’s evidence. The trial judge never made judgments about the manner the complainant behaved, or ought to have behaved. Second, the trial judge’s findings were based on evidence heard at trial and were reasonable.

[33] The Defence submits that human experience and common sense are inextricably tied to the inference-drawing and truth-seeking function of the trier of fact. Once primary facts are set out and accepted by the trial judge, the process turns to a judge’s lived experience and logic to determine which inference she/he will draw based on that factual matrix. The inferences that the trial judge draws, insofar as they are reasonably supported by the evidence, subsequently become findings of fact. The inferences must, however, be drawn from the totality of the evidence heard at trial.

[34] Furthermore, it is the Defence’s position that there was never any suggestion by the trial judge that LH’s account of the incident was implausible because it occurred in a public space or that she was less worthy of belief because she did not cry out to people in the washroom.

[35] Lastly, the Defence submits that with respect to the trial judge’s comments regarding LH’s emotional state about the incident in the washroom, it is unclear what role, if any, this passage may have played in the trial judge’s reasons. The trial judge’s comments were not, however, pulled from thin air. There was evidence about LH’s emotional state. Her sister testified that she was under the impression that her sister was embarrassed and LH herself testified that the situation was embarrassing.

[36] I agree with the Crown that the trial judge’s finding rested on a theory of how a victim “should” or “would” act. The trial judge noted a few key points in Mr. Spicer’s evidence to support his findings. With regard to entering the stall, LH said nothing in response to Mr. Spicer saying to her “let’s go into the stall”. Mr. Spicer put his hand on the stall door to open it and then put his hand out and LH put her hand in his. Mr. Spicer took that as an affirmative. During cross-examination, Mr. Spicer agreed that at the point of entering the washroom, he had no basis to believe that LH was sexually interested in him from the conversation they had that night. It dawned on him that LH was interested in giving him a “blow job” when she went into the washroom stall with him. “That was his transition from having to go pee to thinking he was going to get a blow job” (Judgment, at p. 22).

[37] A trial judge is entitled to draw inferences based on evidence. However, in this case, the trial judge’s finding rested on myth-based reasoning predicated around the myth that sexual assaults happen only in private: see A.B.A., Y.C.B., R.E.M., Doodnaught, and Meeko. In addition, the trial judge found that because Mr. Spicer had something to lose, i.e. his job, he would not have sexually assaulted LH. He found that “at the end of the day he purportedly saved her job by him taking the hit”. As argued by the Defence, once primary facts are set out and accepted by the trial judge, the process turns to a judge’s lived experience and logic to determine which inference she/he will draw based on that factual matrix. However, while this may be true, there are limits as to what inferences can be drawn, even if they are based on a judge’s lived experience and logic. If the inferences rest on myth-based reasoning such as the trial judge did in this case, that is not permissible.

[38] The Crown further argues that the trial judge’s error mirrors those in A.B.A. The trial judge found that LH’s embarrassment was more akin to one who was embarrassed about being seen in a washroom stall with a co-worker and therefore preferred Mr. Spicer’s testimony. The trial judge furthermore preferred Mr. Spicer’s testimony because it accorded more with “reason and common sense”. While I agree with the Defence that a trial judge can draw inferences derived from primary facts established in the evidence, when these inferences are based on how a victim of sexual assault would or should act as in this case, I find that this is reasoning based on myths and stereotypes.

[39] The trial judge’s reasoning falls into the same pitfall as noted by the Court of Appeal in R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023. I find that his reliance on “reason and common sense” did not cleanse his assessment because his common-sense inferences reflected stereotypical sexual and myth-based reasoning. They impacted his consideration of LH’s evidence and his assessment of reasonable doubt. As in Lacombe, the trial judge’s “conclusions were the product of legally flawed reasoning”: Lacombe, at para. 52.

[40] I find that these findings by the trial judge employed myth-based and stereotypical reasoning and constitute an error of law.

Did the trial judge err in finding that, because LH accompanied Mr. Spicer to the washroom stall, she consented to any and all sexual activity that would take place therein?

[41] The Crown argues that the trial judge erred in ruling that LH’s accompaniment of Mr. Spicer in the washroom stall constituted consent. More specifically, the trial judge found as follows:

Firstly, LH testified CS “tells me to get into the bathroom stall”. Secondly, and shortly after, LH materially changed what CS purportedly said to her, by saying “or CS said let’s go into the bathroom stall”. This latter comment is consistent with CS’s testimony that he said to LH, “Let’s go into the bathroom stall”, followed by LH putting her hand in his hand as they entered the bathroom stall, into the larger, disabled person stall at the back of the men’s room. It leaves this court with a reasonable doubt that LH did not give her consent to what happened in the stall, to how both of them end up entering the stall together (Judgment, at p. 30).

[42] The fact that LH may have taken Mr. Spicer’s hand to go into the washroom stall does not equal consent. The evidence showed that LH did not consent to Mr. Spicer touching her breasts and to him exposing his penis to her in order for her to perform oral sex on him. There is no evidence that LH specifically consented to each and every sexual act “at the time it occur[ed]”: Ewanchuk, at para. 26; J.A., at para. 34.

[43] LH testified as follows regarding Mr. Spicer touching her breasts:

I went to the washroom, I was washing my hands, and then Cody came in and he started making sexual comments about my appearance, my breasts, how good I looked that night, and really explicit comments about my chest. And then he reached in my shirt and grabbed my nipples and I said no and that didn’t phase him (Transcript, April 15, 2019, at p. 71).

[44] With regard to going into the washroom stall, when counsel asked LH how she had felt up to that point, she testified: “Intimidated and scared. He didn’t seem to be reacting to my emotions.… He wasn’t picking up on me saying no” (Transcript, April 15, 2019, at pp. 73-74).

[45] As for the sexual activity in the washroom stall, LH testified:

He pushed his body forward, his crotch area, into the area that my face was in, so that I had to move my neck back so it wouldn’t touch me…He said the words “Suck my dick.”… I told him no. I said I’m not into this. Stop. I’m getting really obviously upset…He continues to jerk himself off a little bit and still tries to get me to perform oral on him, and then that just went on until our co-worker entered the washroom. And at that point I told him, I’m like, “People are in here. Like, what are you doing?” And he tells me to, “Shh, shh. Don’t say anything.” And then my co-worker, Terry, opened the stall door at some point and looked at me and walked out. And when he did that, Cody, like, moved himself so that he wouldn’t be able to see that his dick was out, so he kind of moved himself into the corner. Just positioned himself…I believe it was after Terry had closed the stall door, he said same, “Shh, shh. It’s okay.” And then he said, “All you have to tell people is ‘Cody is an asshole. Cody’s an asshole.’…Cody seemed stressed at that point but, again, he never took his - he never put his penis away. It was still out the whole time and he was still trying to get me to perform sexual acts on him.

[46] Mr. Spicer testified about what happened to in the washroom stall as follows:

A. After I had shut the door, I had walked over to her and, at that point, I unzip my pants.

Q. And when you unzipped your pants, did you remove your penis from your pants?

A. I did, yes.

Q. Okay. And what, if anything, did she say or– or do at this point?

A. She was giggling and kind of saying, “Cody, what are you doing?”

Q. And what – what was the thought in your mind about what was going to take place in that stall?

A. I thought I was going to get a blowjob. (Transcript April 16, 2019, at p. 26).

Q. Well, if you’re there to get a blowjob, right, and she’s simply sitting on the toilet and she’s not touching your penis, that suggests, does it not, that she’s not inclined to, not interested in, giving you a blowjob?

A. How do you mean? In that it was on the way through very specific spots? Possibly not. But once she was sitting on the toilet and I was in front of her and there was no negative signs towards me, I at that point figured I was going to get a blowjob.

Q. So, if you’re guiding her hand towards your penis and her hand’s not prepared to go to your penis, isn’t that an indication she’s not prepared to touch your penis?

A. She didn’t pull her hand away and I didn’t grab her hand. I held my hand open, she put her hand into mine and then I guided it towards.

Q. So, after you’ve essentially got nowhere in terms of the blowjob with her, in terms of she hasn’t touched your penis with her mouth, she hasn’t touched your penis with her hands, she hasn’t indicated anything to you verbally that she’s inclined to give you a blowjob, right?

A. She was giving evidence or signs, I guess. She was smiling, she was – I wasn’t pulling her hand, her hand was coming with mine. At no point was she showing any signs of negativity in this whole scenario.

Q. So after all that, what then made you believe that you could touch her in the breast area?

A. When people came in we both looked at each other and hunched down in a quiet motion, meaning that we were both not trying to get caught and we were smiling about it. Given the situation that people were outside of the stall and we were inside, it seemed like we had our own little world going on, and so at that point I went to continue what we were doing.

Q. So the fact that you’re in the stall and the two of your [sic] are somewhat embarrassed by the fact that others have come in, that led you to believe that it was okay then to be touching her in her breast area?

A. Wasn’t embarrassment at that point as much as suspense or excitement. (Transcript April 16, 2019, pp. 69-71)

Q. And from what you’ve told us when you’re in the washroom, in terms of what’s going on, she’s not an active participant.

A. In which way?

Q. Well, she’s not actively making any sexual advances towards you, right?

A. Again, we had our conversation before leading up. It was joking. Me leading her in and her taking my hand is where I felt that she was complicit.

Q. Well, she’s acquiesced to your hand gesture, on your evidence, but she hasn’t actively participated. She hasn’t gone out in any way to, for instance, touch you physically, right?

A. No. At no point did she say, “I want to give you a blowjob.”

Q. At no – at no point does she go out to even touch you physically, right?

A. To actively touch me?

Q. Yeah.

A. No.

Q. She doesn’t take any steps to kiss you?

A. No.

Q. In fact, she doesn’t even touch even though you try to direct her hand, she doesn’t even touch your penis.

A. No.

Q. And when you take your penis out, on what you’re saying, she says words to the effect of, “Cody, what are you doing?”

A. Not in that tone, but those words, yes.

Q. And I’m going to suggest to you that’s at least ambiguous. “Cody, what are you doing?” That’s at least ambiguous in terms of whether or not she’s consenting to getting – to giving you a blowjob, right?

A. Are you suggesting to me or asking me that?

Q. Well, I’m suggesting to you that’s at least ambiguous, right?

A. Looking from the outside, absolutely. (Transcript April 16, 2019, at pp. 93-94.

[47] A reading of both LH’s and Mr. Spicer’s testimony does not demonstrate that LH consented to any sexual activity with him. Other than LH saying “what are you doing?”, there is no conversation between LH and Mr. Spicer. It cannot be said that LH consented to sexual activity with Mr. Spicer simply because she entered into the washroom stall with him. As noted by the Supreme Court of Canada in Ewanchuk, at para. 26, and again in J.A., at para. 34, the complainant must consent to the activity “at the time it occur[s]”. LH did not consent at the time the activity occurred.

[48] I find that the trial judge erred in finding that LH consented to any and all sexual activity that would take place therein.

Conclusion

[49] I allow the Crown’s appeal and remit the matter back to the Ontario Court of Justice for trial.

Justice M. O’Bonsawin

Released: January 25, 2021

COURT FILE NO.: CR-18-SA5081

DATE: 2021/01/25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Appellant

– and –

Cody Spicer

Respondent

REASONS FOR DECISION

O’Bonsawin J.

Released: January 25, 2021

[1] Although the indictment noted that the alleged sexual assault occurred on or about January 29, 2018, before the close of its case, the Crown requested for the date to be amended to on or about February 6, 2018 based on the evidence produced at trial. This was accepted.