Court File and Parties
COURT FILE NO.: 19/389 DATE: 2022/01/07 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – John Gubbels Defendant
Counsel: C. Pennycook, for the Crown P. Douglas, for the Defendant
HEARD: October 25-27, 2021
Restriction on Publication
By court order made under s. 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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.
Reasons for Judgment
Justice A. K. MITCHELL
Introduction
1On November 28, 2017, John Gubbels was charged with 3 counts of assault on M.D. with a weapon contrary to s. 267(a) of the Criminal Code of Canada (the “Code”) with respect to incidents alleged to have taken place during the period January 1, 2013 and ending November 30, 2015 1. He was also charged with one count of sexual assault of M.D. with a weapon contrary to s. 272(2) of the Code with respect to an incident which is alleged to have taken place during the period April 1 and April 30, 2014.
2At the commencement of trial, Mr. Gubbels pleaded not guilty to all counts although he admitted identity, jurisdiction and continuity of exhibits. In defence of these charges, the defendant claims the Crown has failed to prove M.D. did not consent to the conduct forming the basis of the allegations.
3The evidence at trial was focused on the issue of consent and whether the Crown has proven beyond a reasonable doubt that M.D. did not consent to the application of force applied by the accused and/or that the accused knew that the complainant did not consent to the force applied.
4This was a one-witness trial. The Crown’s case relied on the complainant’s evidence being found both credible and reliable with respect to the issue of her lack of consent.
Overview
5The complainant and the defendant met in May 2012 on “Collarme”, an online dating site for people primarily interested in dominant/submissive relationships involving bondage, domination, sadism and masochism (colloquially known as “BDSM”). At that time, the complainant was 45 and the defendant was 55 years of age.
6The relationship between the complainant and the defendant ended in December 2015. In October 2017, the complainant reported the alleged assaults to police.
7The Crown alleges that during the course of the complainant’s and the defendant’s relationship and without the complainant’s consent:
(a) on Easter weekend in April 2014, the defendant used a knife to cut a criss-cross pattern on her back and to cut the words “John’s slut” on the complainant’s abdomen and the word “bitch” on her chest. Thereafter, he engaged in vaginal intercourse with the complainant and forced the complainant to perform oral sex on him until he ejaculated;
(b) furthermore, sometime after Easter 2014 in two separate incidents, using a knife, the defendant cut the complainant’s thighs; and
(c) last, in three separate incidents – two in 2013 and the third occurring sometime after the Easter incident - the defendant struck the complainant on her thighs with a piece of garden hose.
The Evidence
8The evidence at trial consisted solely of the testimony of the complainant.
The Relationship
9M.D. testified that her relationship with the accused evolved quickly. By August 2012, they had committed themselves to one another in a “collaring” or life ceremony. M.D. explained that a “collaring” ceremony typically involves the dominant presenting the submissive with a collar to signify their commitment to one another as dominant and submissive, as well as being a symbol of their commitment to a “whole world” relationship. She described a collaring ceremony as the equivalent of a marriage ceremony in the BDSM community.
10The complainant testified that she and the accused did not exchange jewelry during the ceremony because they were private individuals who did not wish to advertise the nature of their dominant/submissive relationship to the public. During cross-examination, the complainant was presented with a copy of an email she sent to the accused on May 18, 2014 suggesting the collaring ceremony did not take place in 2012; rather took place in 2014. In this email she writes: “Dom, here is the explanation of a collar and collaring as the girl understands it. I can complete the document of the erotic presentation of myself when the time is right. xo”. The complainant explained that her email referred only to presentation of the collar or jewelry and not the ceremony itself. I do not accept this explanation because of the reference to “erotic presentation”. This language suggests the collaring ceremony had not yet taken place. However, I accept that some form of commitment ceremony took place in August 2012 and find this inconsistency in the evidence to be immaterial to my assessment of the complainant’s evidence with respect to the allegations of assault.
11By January 2013, the accused had moved into the complainant’s apartment although he maintained his former matrimonial home. M.D. testified that their relationship evolved beyond a BDSM or purely sexual relationship, to one which included a “vanilla” or domestic element akin to a traditional monogamous relationship. One of the activities they enjoyed together was hiking and together they joined a local hiking club.
The Checklist
12After a month or so of dating, the complainant provided to the defendant a BDSM “checklist” comprised of a list of various acts and sexual activities. For each act or activity listed, the complainant indicated any prior experience and her preference for and willingness to engage in the activity on a scale of 1 to 5, with “0” being a “hard limit”. The complainant described a “hard limit” as an activity that can never happen and that in which she would never engage. A “2-3” indicated a “soft limit” or an activity the complainant was prepared to try.
13On consent, this checklist, redacted for acts and sexual activities not relevant to the charges before the court, was made an exhibit at trial. Relevant to the charges before the court are the following entries in the checklist:
(a) the complainant ascribed a “0” to “abrasion” and described abrasion play as anything that “breaks the skin”. She said she was not interested in abrasion or any activity that could break the skin;
(b) she ascribed a “2 -3” for “beating (soft)” and explained that a “2” indicates she has an interest in the activity and is willing to do the activity but that it has no special meaning for her rather she would do it specifically for the accused’s pleasure;
(c) she explained that a “3” indicates an activity she usually likes to engage in on an intermittent basis and that she is willing to try and thinks she might enjoy;
(d) with respect to “beating (hard)”, the complainant indicated her willingness as “1” and explained that she does not want or like to do this activity but would not object if it was asked of her;
(e) the complainant assigned a “0” to “knife play” indicating it was a hard limit; and
(f) with respect to pain, the complainant assigned a “1” to severe pain and a “4” to mild pain suggesting the complainant likes doing the activity on a regular basis.
14M.D. testified that being a diabetic any activity which could break her skin was a “hard limit” and this included abrasion because it took her longer to heal putting her at risk of infection. She said that this hard limit never changed throughout her relationship with Mr. Gubbels.
Use of Safe Words
15The complainant testified that in the early months of their relationship they agreed to use the safe words “yellow” and “red” when engaging in sex play involving BDSM practices. However, the complainant said that by July 2012 safe words were no longer used because Mr. Gubbels understood the complainant’s hard and soft limits during sex play and he did not test those limits. M.D. says that she trusted the accused to respect her limits.
16As M.D. explained, Mr. Gubbels understood and was well aware that her use of the words “no” and “stop” – whether during BDSM sex play or during activities in their “vanilla” world - indicated she did not consent to the force he was applying in the sexual activity in which they were engaged, and that he was to immediately stop the activity.
17Turning now to a review of the evidence relating to the conduct forming the basis of the charges against Mr. Gubbels.
Count 1 – Sexual Assault with a Weapon
18With respect to count 1, the complainant testified that this assault occurred one morning on Easter weekend in April 2014. The accused and M.D. were sitting side-by-side on the couch in the living room of M.D.’s apartment watching television. Mr. Gubbels was using a serrated steak knife taken from the complainant’s kitchen to cut his toenail cuticles. The complainant asked the accused to put the knife down and scratch her back as she had itchy skin. While the accused was scratching her back with his fingernails, he picked up the knife and proceeded to use the tip of the knife to attempt to remove a blemish he had observed underneath the skin of the complainant’s back. The complainant testified that as she felt the tip of the knife going into her skin she said to the complainant “fuck that hurts”.
19The complainant heard the accused “growl” behind her which she described as indicating the “epitome of arousal” for the accused. The accused continued to use the knife to dig out the blemishes whereupon M.D. told him: “[o]uch, it hurts. Stop.” The accused then took the blade of the knife and, pressing against her skin, moved it from her shoulder across down to her waist on the opposite side. The accused repeatedly cut the complainant’s back in a criss-cross pattern. During the cutting, the complainant said to the accused: “Fuck, that hurts. Stop”. The accused did not stop and responded by saying “shush, you shush”, and “stop it, you’re just gonna make it worse”.
20The accused then proceeded to have her lay on the couch on her back and, using the same knife, carved the word “bitch” onto her chest above her breasts and the words “John’s slut” on her abdomen.
21After cutting her chest and abdomen, the accused directed the complainant to get on her knees in front of him with her back to him. The accused had her move backwards onto his erect penis thereby penetrating her vagina. The complainant testified that she remembers thinking: “Holy fuck, holy fuck. What is he doing?”. She said that during the incident she was scared and afraid. She testified that she did not ask him again to “stop” because he had not listened to her when she had asked him to stop while he was cutting her and she feared for her safety because he still had the knife.
22Following vaginal intercourse, the accused directed the complainant to perform oral sex on him until he ejaculated. The complainant could not recall what if anything happened after Mr. Gubbels ejaculated.
23M.D. testified she did not protest nor say anything to the accused during the sexual activity because she did not want to get hurt. The complainant did not use the safe word “red” at any point during the cutting nor during the sexual activity.
24The complainant testified that she did not consent to the accused cutting her back, chest and abdomen, nor did she consent to having vaginal sex, nor did she consent to performing oral sex on the accused.
25The complainant does not recall exactly what she was wearing during the Easter incident but believes it would have been either a long t-shirt or a nightie or something similar but no underwear because she explained that she had to make sure the accused, as dominant, had access to her body for his sexual pleasure.
26The complainant estimated that the injuries to her back, abdomen and chest took approximately 2 to 3 weeks to completely heal. Photographs of the cuts to the complainant’s back and abdomen were filed as exhibits at trial. The complainant testified that the accused took the photographs and e-mailed them to her the following day.
27The complainant remembers speaking to the defendant after the incident and telling him it could never happen again. She remembers that he scoffed at her in response and chuckled. She recalls him having an impish grin suggesting to her that he minimized the seriousness of the incident.
Count 2 and 3 - Assault with a Knife
28With respect to counts 2 and 3, the complainant testified to two incidents which took place sometime after the Easter incident in April 2014, and before their relationship ended in December 2015.
29The complainant testified that during the first incident the accused took the tip of a serrated steak knife and cut or scratched the top of her leg. During the second incident the accused used the tip of a serrated steak knife to make a design or a pattern on her thigh. She described the pattern as a “doodle”. She testified that she could not remember “the dates or the circumstances” of these incidents.
30With respect to the first incident, the complainant testified that she and the accused were sitting on the couch watching TV. She does not recall why the accused had the knife. The complainant recalls wearing only a T-shirt to ensure the accused had access to her body. She could not recall what happened before the tip of the knife scraped her leg. She remembers thinking “how far is this going to go?” She says the accused stopped very quickly and the incident did not escalate.
31She does not recall the accused saying anything to her before he used the knife and does not recall if she said anything him. She did not seek medical attention because she was ashamed that she had “let it happen again”. She described the incident as happening “so quick and then it was over”.
32M.D. testified that the knife would have come from her kitchen but she does not recall whether she brought it to the defendant or if he retrieved the knife himself.
33With respect to the second incident, the complainant cannot recall what she was wearing. She cannot recall what happened before the tip of the knife touched her leg. She remembers sitting to the accused’s immediate left on the couch watching TV. She does not recall who got the knife. She just remembers looking down and thinking “he’s not gonna cut me with that”. She remembers him tracing a pattern on the top of her thighs with the knife. She described her injuries as scratches that healed very quickly.
34Four photographs of the injuries inflicted upon the complainant during these incidents were filed as evidence. In one photograph the injuries appear as a rash to the top of the applicant’s left thigh. The complainant testified that these injuries were caused by the accused scraping the edge of the serrated knife blade along the top of her thigh. He did not use the tip of the knife. She testified that she did not bleed.
35In the second photograph light red-coloured abrasions can be observed on the skin on the top of the complainant’s right thigh. The complainant says these injuries were inflicted during the first incident. The third photograph shows three vertical abrasions on the skin on the inside of the complainant’s right thigh. The complainant says these abrasions were inflicted by the accused during the second incident. The final photograph shows some light scratching in the form of a criss-cross pattern on the skin on the right side of the complainant’s left thigh. The complainant said that this photograph was taken after the second incident. She testified that her skin was lightly broken - enough to bring blood to the surface and cause scabbing.
36The complainant first testified that she took the photographs within a day or so or possibly the same day as the incidents but was not sure. When asked again when the photographs were taken, the complainant stated definitively “24 to 48 hours after it happened”.
37During cross-examination, the complainant confirmed that she sent the four photographs to Mr. Gubbels but could not recall the circumstances surrounding her sending the photographs to him. She could not recall if Mr. Gubbels asked her to send the photographs or if she sent them to him unsolicited. She agreed that she may have sent them to him for his pleasure despite the incidents being traumatic for her.
38The complainant testified that she did not consent to either incident. She said both incidents were in violation of her “hard limit” with respect to abrasion play and knife play.
Count 4 – Assault with a Hose
39With respect to count 4, the complainant testified to three separate incidents involving the defendant assaulting her with a piece of garden hose. Two of the incidents occurred some time between January and November of 2013 after the accused lost his job and his company cell phone and before he purchased a replacement cell phone in late 2013. The third incident occurred some time after the Easter incident in 2014.
40The complainant said that they used a length of garden hose in their BDSM play. The hose was intended to be used for impact play. She gave as an example a spanking. The complainant could not recall how many times the hose had been used in their BDSM play. The hose was first stored in the nightstand in the bedroom and at some point, the accused brought it to the living room and would intimidate her by hitting the tops of her thighs with the hose. The complainant states that she did not consent to the accused using the hose to intimidate her rather she only consented to him using the hose during BDSM play.
41With respect to the first incident, M.D. recalls they were sitting on the couch watching TV between 9 and 9:30 PM. The accused was sitting closest to the arm of the couch with the complainant sitting beside him to his left. The accused had instructed the complainant that whenever they were together watching television, she was not permitted to use her phone to text or make phone calls. The complainant remembers receiving a phone call on her cell phone and answering the call. The accused became upset and took a section of garden hose that he stored between the arm and cushion of the couch and “smacked her really hard with it” resulting in a red welt on the top of her thighs. Because her hand was resting on her thigh, he hit her hand, as well resulting in a bruise near her thumb on the palm of her hand.
42With respect to the second incident, M.D. recalls that they were again sitting on the couch watching TV around 9 PM when the complainant received a notification of a text message on her cell phone. As she reached for her phone, the accused hit the complainant across the tops of her thighs with the hose.
43The complainant recalled a third incident. They were again sitting on the couch watching TV when the complainant laughed unexpectedly which startled the accused. The accused grabbed the hose and hit the complainant on her thighs leaving a welt.
44The complainant did not take photographs of her injuries nor seek medical attention for her injuries. She explained that she did not seek medical attention nor report the incidents to police because she was not prepared to leave the accused. She testified that she was not at a point where she was strong enough to make a statement to police because the accused still lived with her and she believed that they would eventually have a “whole world” relationship that was great, loving and kind and that they would grow old together.
Events Following Separation
45The complainant testified that after the Easter incident her relationship with the accused devolved and she became afraid of him. By December 2015, she could no longer tolerate the relationship. During cross examination, M.D. acknowledged that she knew Mr. Gubbels was having an affair however she was prepared to put up with the affair because she believed it was only sexual. When the accused did not come home the night before she ended the relationship, she knew their relationship was no longer monogamous and so ended their relationship. Shortly after their relationship ended, the complainant contacted the woman with whom the accused was having an affair and they communicated from time to time about their respective relationships with Mr. Gubbels.
46The complainant testified that in July 2016, she was contacted through Facebook by another woman with whom Mr. Gubbels had been in a BDSM relationship. She says she provided this woman with support and that they discussed the differences in their respective relationships with the accused, his possessive personality and his deceptive behaviour.
47After their relationship ended, the complainant blocked Mr. Gubbels on her phone. Both she and the accused continued to hike with the local hiking group of which they were members. During these hikes, M.D. says that the accused would follow her, give her dirty looks and would attempt to intimidate her. She recalls speaking with him once at the end of a hike in June or July 2016 and asking him to give up hiking with the group and “to respect her boundaries”. He did not do as she requested.
48On July 26, 2016 the complainant sent the accused an email telling him that she was no longer going to stay away from him including on hikes and suggested that if he sees her anywhere, he should leave. She told him she was no longer going to live in fear of him.
49By responding email, Mr. Gubbels demanded that the complainant stop spreading disparaging remarks about him and threatened to contact her disability plan administrator to advise that she was fit to return to work. He also threatened to “out” her to her family. He advised her to disassociate herself with the hiking club until she was more psychologically stable. M.D. reported these threats to police. The police did not lay any charges rather suggested that they stay away from each other.
50During cross-examination, the complainant admitted that after separation she had placed disparaging posts about the accused on various social media sites. The complainant also admitted that, on more than one occasion prior to October 2017, she had reported to police certain conduct of the accused post-separation but not the alleged assaults. M.D. said that she reported the assault allegations to police in October 2017 because she was upset and felt violated after the defendant damaged her car.
51The complainant testified that during the six incidents of alleged assault neither she nor the accused had consumed or was under the influence of alcohol or drugs.
Analysis
52The complainant testified to six separate incidents of assault one of which is alleged to have been sexual in nature. Three of these alleged assaults involved the use of a knife and form the basis for counts 1, 2 and 3 on the indictment. Three of the alleged assaults involved the use of a hose, and form the basis for count 4 on the indictment.
53The defendant argues the Crown is unable to prove beyond a reasonable doubt, based on the evidence adduced at trial, that the complainant did not consent to the activity underlying these charges. Specifically, the defendant challenges the credibility and reliability of the complainant’s evidence and points to several inconsistencies in her evidence. He also raises a defence of honest but mistaken belief in consent with respect to the offence of sexual assault.
54Mr. Gubbels is presumed innocent. He was not obligated to introduce evidence of any kind and he elected not to do so. The Crown bears the burden of proving Mr. Gubbels’ guilt beyond a reasonable doubt and this burden of proof applies to each and every element of the offences with which he has been charged. While I need not be absolutely certain Mr. Gubbels is guilty, more than probable guilt is required. I must be sure of his guilt.
55I must always remind myself that at no time does the burden of proof shift to Mr. Gubbels. Mr. Gubbels need not prove that M.D. consented to the force he applied, whether sexual in nature or otherwise, in the context of these alleged assaults. To acquit Mr. Gubbels, I need only be left with a reasonable doubt as to whether M.D. consented to the force applied. The presumption of innocence, therefore by inference, includes the presumption of consent. Even if I conclude that it is more likely than not that M.D. did not consent to any or all of the force that was applied by Mr. Gubbels, I must still acquit him. Such is the heavy weight of the burden imposed on the Crown.
56The issues in this case are straightforward. The evidence is not.
57I will start the analysis by reminding myself of the standard jury instruction. As trier of fact, I am permitted to accept some, all or none of the complainant’s evidence. And I must consider the complainant’s evidence within the context of the evidence as a whole.
58Overall, the complainant presented as forthright and honest. She fairly acknowledged when she was unable to remember specific details. She fairly agreed with suggestions put to her by defense counsel as being possibly true in circumstances where she lacked a specific recollection of the event or the conversation. She was not combative or argumentative. On balance, she was responsive and fair in her answers during cross-examination subject to a few notable exceptions which I will address later in these reasons.
59I will deal with each count on the indictment separately.
Count 1 – Sexual Assault with a Knife
60With respect to this particular count on the indictment, Mr. Gubbels’ guilt rests squarely on whether I am able to reconcile an answer given by M.D. during cross-examination which the defendant submits is an admission of consent and must, therefore at a minimum, raise a reasonable doubt with respect to M.D.’s lack of consent.
61In light of the materiality of the complainant’s evidence, I will reproduce both M.D.’s exchange with defence counsel during cross-examination and her exchange with Crown counsel during redirect examination. During cross-examination, the complainant gave the following answers:
Q. Okay. So, turning now specifically to the Easter 2014 incident – not on the transcript, you can [indiscernible] - isn’t that precisely the sort of situation that you would use a safe word in?
A. I can’t – I mean, is this precisely what I would use the safe word for? It would depend. If I’m with John, No, because I can say “Stop”. I can use my language.
Q. And at no time during that interaction did you say “Red” or “Yellow”?
A. No.
Q. I’m going to suggest that you never used the safe word at any point with John because everything that took place between the two of you was consensual?
A. That is correct.
62During redirect examination, Crown counsel asked the complainant to clarify her conflicting evidence on the issue of consent. Crown counsel asked:
Q. So why did you agree then to the suggestion that “you never used a safe word at any point with John because everything between the two of you was consensual”? Can you clarify, please?
A. Yes, I can clarify.
Q. Thank you.
A. It was consensual up until he used the knife. It was consensual – but when he took that knife and he cut me with that knife and it was sexual for him, it wasn’t sexual for me and it wasn’t sexy. It was a hard limit, which is the line of consent, and the minute he stepped over that line, everything was non-consensual at that point. When that knife touched my body, everything after that was not consensual.
63While giving her testimony at trial, I observed the complainant to be articulate, intelligent, and to have a strong command of the English language. She appeared careful when answering. At the time of the complainant’s admission of consent, the focus of cross-examination was on the Easter incident in its entirety – that is, both the cutting and the sexual activity. Defence counsel’s question was direct and included the temporal reference “at any point”. The question was clear and unambiguous. It was not vague, convoluted or confusing. Likewise, the complainant’s response was not rushed or articulated in a manner suggesting she did not understand the proposition put to her. She responded in the affirmative using the language “that is correct”; rather than a simple “yes”.
64It is not surprising, therefore, that the complainant was unable to rehabilitate her evidence on the issue of consent with respect to the Easter incident during redirect examination. The complainant’s clarification of her evidence was simply a recitation of her earlier evidence. Her answer did not explain the material inconsistency in her evidence. Without such an explanation, I cannot reconcile this material inconsistency in M.D.’s evidence as to the issue of her subjective consent to the activity forming the basis for count 1.
65During her reply submissions, Crown counsel suggested that the only reasonable inference to draw from this admission in the context of the complainant’s evidence as a whole is that the act was not consensual beginning at the point when Mr. Gubbels used the knife to cut the complainant. The Crown’s suggested inference requires that I disregard that this admission of consent was not limited to a point in time. I am unable to do so. I cannot simply ignore this evidence. Consequently, I am left with a reasonable doubt with respect to the complainant’s lack of consent.
66Although it is unnecessary to review in detail having regard to my finding of reasonable doubt with respect to the issue of consent, I note a further inconsistency in the complainant’s evidence affecting the reliability of her evidence in relation to count 1. The complainant’s evidence as to the timing of the accused taking the photographs of the cuts to the her back, chest and abdomen was materially inconsistent. When asked by Crown counsel how much time had passed between the acts of carving on her body and the photographs being taken, the complainant responded, “24 hours at most”. This question was immediately repeated by Crown counsel and the complainant provided the same evidence stating “20 – 18 to 24 hours” after the incident. However, after reviewing the photographs, the complainant contradicted her evidence given just moments before, and stated that the photos were taken immediately after the accused stopped cutting her and before any sexual activity. No explanation for this change in her evidence was requested or provided.
67This inconsistency is material because it brings into question the complainant’s ability to recall the events forming the basis of count 1 and, therefore, the reliability of her evidence relating to that count.
68One further inconsistency in the complainant’s evidence relating to count 1 bears mention and relates to the use of safe words. At trial, the complainant testified that early in their relationship she and the accused agreed that “yellow” and “red” were their agreed “safe” words but that they were quickly replaced with ordinary words. For example, if during BDSM play the complainant wanted to slow down or to take a break she would simply ask the accused to do so. Similarly, if the complainant wanted to stop the sexual activity, she would ask the accused to “stop”. M.D. testified that although the safe words were agreed to initially, they were “gone” after the first couple of months and never used again during their relationship.
69During cross-examination, this evidence was contrasted with the complainant’s statement to police where she stated that the “safe words were always there to draw on”. I find this evidence to be inconsistent with her evidence at trial. Either the safe word “red” was available to her during the Easter incident or it was not. If it was still available to her as she told police, I am left to wonder why it was not used. If it was in fact “gone” as she testified at trial thereby supporting her evidence that using the word “stop” should have been sufficient without more, her statement to police cannot be reconciled with her evidence at trial.
70I find that the inconsistencies in the complainant’s evidence relating to count 1 on the indictment undermine the reliability and credibility of this evidence so as to raise a reasonable doubt as to the defendant’s guilt.
71Before moving on, I wish to address the effect of the complainant’s evidence of consent to the activity forming the basis of count 1 on the issue of consent with respect to the balance of the counts. I am unable to accept that this material inconsistency taints the complainant’s evidence as a whole and undermines her credibility generally as the defendant suggests. When asked to provide an explanation for the inconsistency during re-examination, M.D. was not responsive to the question. However, I do not find that her lack of responsiveness was motivated by an intent to deceive the court. While I find that I am unable to reconcile this evidence with the complainant’s other evidence relating to the issue of consent with respect to count 1, I do not find that it gives rise to a reasonable doubt with respect to the issue of consent for all other offences which Mr. Gubbels is facing.
Counts 2 and 3 – Assault with a Knife
72Turning now to counts 2 and 3 on the indictment. I will analyse whether the Crown has proved Mr. Gubbels’ guilt of the offences forming Counts 2 and 3 on the indictment together, as that is the manner in which the evidence was presented with respect to these alleged assaults and the analysis is the same.
73The focus of the analysis is whether the Crown has proven beyond a reasonable doubt the complainant’s subjective lack of consent to the force applied and the defendant’s knowledge of the complainant’s lack of consent. It is not enough for the Crown to prove the complainant did not consent to the force Mr. Gubbels applied with the knife. The Crown must also prove the mens rea of the offence which requires proof beyond a reasonable doubt that Mr. Gubbels knew that M.D. did not consent to the force being applied.
74I accept the complainant’s evidence that she did not consent to the accused scratching/scraping/cutting her thighs in the manner depicted in the photographs and as she described in her evidence. Consequently, I am satisfied the Crown has proven beyond a reasonable doubt that M.D. did not consent to the force being applied by the accused. However, I am not satisfied beyond a reasonable doubt that the defendant knew the complainant did not consent at the time he was applying the force.
75I arrive at this finding of reasonable doubt having regard to the following evidence or lack of evidence, as the case may be:
(a) the complainant described her role in their BDSM relationship as the submissive and the accused as the dominant. She explained that as submissive she did not control the BDSM play. Rather, that was the exclusive role of Mr. Gubbels, as dominant. She testified that in their BDSM relationship Mr. Gubbels “owned her sexuality”. As dominant, Mr. Gubbels designed the scene and initiated the BDSM play. She further testified that during BDSM play she wore a t-shirt without undergarments to ensure that the accused had access to her body to initiate sex, or touch her sexually. The complainant testified that during the first incident she was not wearing clothing on her lower body so as to allow the accused access to her body. She could not recall what she was wearing during the second incident but believes her pyjama bottoms were removed. This evidence suggests that these incidents were part of BDSM play and, thus, subject to the rules established by them including the complainant’s boundaries with respect to hard and soft limits;
(b) the complainant candidly admitted that she could recall very few details surrounding these two incidents. She could not recall the approximate date either incident took place only that they were separate incidents occurring sometime between April 2014 and December 2015. In the case of both incidents, she could not recall whether she or the defendant obtained the knife from the kitchen. She could not recall saying anything to the defendant during the incident. There is no evidence that she asked the defendant to “stop” or used their safe word “red”. She could not recall the defendant saying anything to her. She admitted that the scraping/scratching/cutting during these incidents did not escalate and ended quickly;
(c) the complainant admitted to taking the photographs of her injuries and sending these photographs to the defendant. She could not recall the reason for taking the photographs and sending them to the accused. She acknowledged she may have sent them to him for his sexual pleasure;
(d) although testifying that abrasion and knife play were hard limits, the complainant admitted that lines in relation to soft limits could get blurred. The complainant admitted she found subtle pain very erotic. She gave as examples bare hand spanking and gentle flogging. Yet she also admitted that if the accused wished to explore hard beating this was something that she would be willing to try for him. This suggests that she was open-minded to more than subtle pain. The photographs depicting the injuries suffered by the complainant during these incidents show, in the first photograph, scraping which the complainant said did not cause her to bleed. The other photographs show scratches or superficial cuts to the complainant’s skin with minimal bleeding. I find that the defendant could have reasonably interpreted this abrasion and knife play as acceptable and within the complainant’s soft limits if he had not been asked to stop and the complainant had not used the safe word “red”.
76The complainant’s evidence relating to counts 2 and 3 on the indictment considered in the context of the evidence as a whole, leaves me in reasonable doubt that the defendant knew the complainant did not consent to the two incidents of scraping/scratching/cutting with a knife forming the basis of counts 2 and 3.
The Alleged Assaults with a Hose
77Turning now to count 4 on the indictment. There is no evidence suggesting the complainant was struck with the hose during any of the three incidents in anticipation of or as part of any sexual activity. I find that the three incidents forming the basis for count 4 did not occur in the context of BDSM play.
78The complainant’s evidence with respect to each incident was detailed. The complainant testified to her clear and specific recollection of the “trigger” for each time she was assaulted with the piece of garden hose which she testified the accused kept between the arm and cushion of the couch. In each instance, something the complainant did angered the accused and triggered him to hit her with the hose. The first time the defendant hit her, he was triggered by her answering her cell phone. The second time the defendant hit her, he was triggered by the sound of a text being received by the complainant on her cell phone. The third time the defendant was triggered by the complainant’s spontaneous laughter.
79M.D. candidly admitted that the section of hose was used by them during BDSM play for impact play and initially was kept in the bedroom for that purpose. M.D. testified that she was not interested in pain for the sake of pain. She said that she enjoyed mild erotic pain in the context of BDSM play. She explained that if pain is inflicted in a setting that is not sexual, there is nothing about the pain she enjoyed.
80I find the complainant’s evidence with respect to these incidents both credible and reliable. She testified as to the accused’s controlling nature, generally. She testified that he had become both verbally and physically abusive towards her over the course of their relationship. She was staunch in her evidence that there was no blurring of the lines between their BDSM play and their vanilla world. Without the overlay of any sexual context, the defendant could not have reasonably misapprehended M.D.’s lack of consent. There is no evidence to support a finding of reasonable doubt that the defendant knew that M.D. did not consent to being hit with a hose when she answered her phone, or read a text message, or laughed.
81Therefore, I find that the Crown has proven all essential elements of the offence of assault with a weapon as charged in count 4.
Conclusion
82For these reasons, I find John Gubbels not guilty of counts 1, 2 and 3 on the indictment and find John Gubbels guilty of count 4 on the indictment.
83I will endorse the indictment accordingly.
Justice A. K. Mitchell Released: January 7, 2022