SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-20-017 (Owen Sound)
DATE: 20220113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
-and-
Henry Fryday
A. Tang, for the Crown
D. Landry, for Mr. Fryday
Heard: December 8 and 9, 2021
Justice R. Chown
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Judgment
[1] The accused is charged with sexually assaulting the complainant sometime between November 12 and November 18, 2019.
[2] The accused and the complainant met on the dating app Tinder and then communicated through Facebook Messenger and then by text. Their first in-person encounter occurred at the complainant’s apartment within weeks of their online introduction. The accused arrived at the complainant’s apartment at around midnight. Within minutes of his arrival, the accused and the complainant engaged in consensual sexual activity. Within 20 or 30 minutes, the encounter was over, and the accused had left the complainant’s apartment. He had said he was going to the variety store to get cigarettes and that he would return, but he had a panic attack. He texted the complainant to this effect and did not return.
[3] At issue in this trial was whether the Crown has proven beyond a reasonable doubt: (1) that certain acts occurred; (2) that certain acts were intentional; or (3) that at some point the sexual activity changed from consensual to non-consensual.
[4] The complainant and the accused were the only witnesses. Their narratives of the events are similar.
The Testimony
[5] The complainant and the accused matched on Tinder in November of 2019. Their initial communications were through the Tinder app. The complainant later deleted the Tinder app. It was not suggested that the complainant’s decision to delete the Tinder app had anything to do with the accused.
[6] The accused first messaged the complainant through Facebook Messenger on November 9, 2019. Their communications through Facebook Messenger are in evidence. At some point, the accused gave the complainant his cell phone number and they started texting instead of using Facebook Messenger.
[7] Although the accused was charged within weeks of the alleged sexual assault, by then the exchanged text messages had been deleted from both of their phones.
[8] Through an exchange of text messages, the accused and the complainant planned to get together, but that meeting did not proceed. Subsequently, they agreed that the accused would come to the complainant’s second floor apartment for a meeting. The complainant testified it was 9:00 p.m. on November 17, 2019, a Sunday, when they agreed to me, but it took the accused until midnight to get ready and come over.
[9] Both witnesses agreed that in the one hour before they met in person, they exchanged text messages which included a sexual component. While the messages are not available, both witnesses said that the accused asked the complainant what sexual positions she liked. He also asked if she was interested in role playing and she replied that she had never done that. This evidence was the subject of a s. 276 application in which I ruled the evidence was admissible (R. v. Fryday, 2021 ONSC 3201).
[10] The complainant says she met the accused at the bottom of the stairs and opened the door for him. The accused says the complainant had unlocked the door before his arrival and had texted him to say he should let himself in and come up the stairs.
[11] The complainant said she was surprised by the accused’s appearance as he looked different from his photos on Facebook or Tinder. When he arrived, he had a toothpick in his mouth. Her dog barked at him. She said sorry for the mess in my apartment. He said, “It’s going to get messier.”
[12] In cross examination, the complainant stated that in advance of the accused coming to her apartment, she was not opposed to having sex. She acknowledged that because of the text messages that had been exchanged, in her mind there was a pretty good chance that they would have sex. She also acknowledged that she took the accused’s comment that her apartment was going to get messier as a sexual reference. She was thinking that he was expecting to have sex, and in her mind, sex was a possibility.
[13] The complainant said that once the sexual activity started, she was “very scared and kind of frozen because it didn’t feel – I don’t know, it didn’t feel good.”
[14] The complainant’s apartment included second floor space and stairs up to an attic space. Her bed was set up in the living room on the second floor. Her testimony was that she and the accused walked over to the bed together. His testimony was that she was sitting cross-legged on the bed when he reached the top of the stairs to her apartment, and that she motioned to him to indicate he should join her on her bed. Neither witness gave detailed evidence about conversation prior to the commencement of sexual activity, but clearly any conversation was brief.
[15] The first sexual contact was kissing for about a minute. The complainant acknowledged that she kissed back.
[16] The accused testified that while kissing there was mutual sexual touching over the clothes, including the complainant putting her hands on his crotch. When asked about this in cross examination, the complainant neither recalled nor denied this.
[17] Clothes started coming off after about a minute of kissing. The complainant testified that the accused took her clothes off, she didn’t say anything to him when he took her clothes off, and she let him and cooperated and assisted him in taking her clothes off. His version is that they each took their own clothes off.
[18] The complainant says that the accused initiated cunnilingus, and that this went on for a couple of minutes. At the beginning of this she was feeling “nervous, I don’t know, scared.” This was not explicitly described but I infer from all of the evidence that, on her version, cunnilingus initially proceeded with her on her back.
[19] The accused described that after kissing he said, “Let’s 69,” and that they then performed oral sex on each other in the 69 position. He did not describe performing cunnilingus in any other position.
[20] The complainant testified in chief that the accused “asked to 69.” Both witnesses agree that mutual oral sex occurred in the 69 position. She testified that this went on for at the most 5 minutes.
[21] In cross examination, the complainant said that she did not say anything in response to the accused asking to 69, but they mutually moved into the 69 position. Both witnesses agree that the accused was positioned on his back for this, with the complainant on top of him. The complainant acknowledged actively participating in this. This went on for a couple minutes.
[22] The complainant said that during this, the accused was directing her, “like kind of forcefully.” “His hands were on me kind of like forcing it instead of if I was just doing it at my own pace, I guess.” She believes his hands were on the back of her head. Nothing was said between them at this point. She does not remember what was in her mind at that time.
[23] The accused denied putting his hands on her head in this way. He said, “I don’t know how I would do that in the position I was in.”
[24] Moving back to the narrative, the complainant initially said, “And then he turned me around and started having anal sex with me which I did not like so I said no a couple of times and he stopped and then started having sex with my vagina.” Later in examination in chief she clarified that the accused did not physically turn her around but rather that they were switching positions to have sexual intercourse. In cross examination, it was further clarified that she, herself, got off from on top of him and put herself on her hands and knees facing the wall. She testified that nothing was said during this repositioning.
[25] In cross examination, the complainant agreed that by going on her hands and knees, she was suggesting she wanted vaginal sex. However, the accused initiated anal sexual intercourse.
[26] The complainant’s evidence in chief was that when this occurred, she said no about three times, and the accused did not say anything. The anal sexual intercourse went on for “maybe just a minute because once I said no, he stopped and switched to my vagina.” Her evidence continued that at this point she “was scared and just felt frozen, physically” so she just thought to herself she should “wait until he finished and then it will be over.”
[27] A significant passage of the cross examination was as follows:
Q. Then he, you said, started anal sex. Is that correct?
A. Correct.
Q, And you said, “No, no, no”?
A. Correct.
Q. And in response he stopped. Correct?
A. Anal, yes.
Q. And then he put his penis into your vagina.
A. Yes.
Q. And when he put his penis into your vagina, you didn’t say no, correct?
A. Correct.
Q. And you didn’t tell him to stop, correct?
A. Correct.
Q. And you remained in that position on your hands and knees while he had sex with your vagina, correct?
A. Yes, and I honestly was too scared to tell him anything. Like “no,” or like “Can we stop?” because I didn’t want to upset him.
Q. Okay, so you were okay to tell him, “No” right before that for the anal sex but then you felt like you weren’t okay to tell him, “No” … I think you said seconds after, when he started vaginal sex?
A. Correct.
Q. And you said he didn’t say anything in between of those two, like the anal and vaginal, correct?
A. Correct.
Q. Okay. Okay so you’re on your hands and knees and vaginal sex is happening. You stay in that position and you didn’t move or pull away while the vaginal sex was happening, correct?
A. No, like I felt physically frozen.
[28] Later, Ms. Landry suggested in cross examination that it was dark in the room and the accused accidentally put his penis into the complainant’s anus but immediately stopped when she signalled that she did not want this. The complainant did not accept this. After a somewhat confused exchange, the cross examination went as follows:
Q. Okay, so I think we’re saying the same thing but we’re just misunderstanding each other.
A. Okay.
Q. So let me just try to clarify and you tell me if I’m right. Okay?
A. Okay.
Q. So I think what you’re telling me is that you think there was about a minute of anal sex. Then you said no. Then seconds later he stopped. Is that right?
A. Correct.
[29] The accused’s version was similar, but he asserted that the anal penetration was accidental and momentary. In chief, he said:
Q. And then what happened?
A. And then that’s where I went to go have sex with her and I accidentally stuck it in her anus momentarily.
Q. OK. How far did your penis go into her anus?
A. It was just the tip. Not very far at all.
Q. And how long did it touch her anus for?
A. It was seconds.
Q. Okay. And, I think you’ve already answered this but why did you put your penis in her anus?
A. It was a complete accident. Um, it was very dark. I couldn’t see.
Q. Okay, and when you accidentally put your penis into her anus, what was her reaction?
A. She said no, and I stopped right away.
Q. And what did you think she was saying no to when she said no?
A. She was saying no to me putting it the wrong hole.
Q. Okay.
A. No, the wrong hole.
Q. And why did you think she was only saying no to you putting your penis in her anus, and not no to sex altogether?
A. Because she didn’t, she didn’t jump up or anything or like show any reaction that she didn’t want to proceed.
Q. Okay so you’re saying she basically stayed in the …
A. Yeah, she stayed in that position and -
[30] He also testified that within 30 seconds after he commenced vaginal intercourse the complainant was moaning.
[31] In cross examination, the accused testified that after the complainant had “put herself into the doggie style position” nothing was said. This accords with the complainant’s evidence. The cross examination proceeded:
Q. So. But you didn’t say anything to one another at that time. How can you be certain she wanted to continue engage in a sexual encounter at that time?
A. Um, the way she was placed in that position. She didn’t jump up or indicate she didn’t want to proceed. I actually ended up asking her if she liked it. She told me she did.
Q. And at what time did you ask if she liked it?
A. A minute after having vaginal sex, into the vaginal sex.
Q. But not before engaging in that sex?
A. No. Because I was … I accidentally put it in her anus.
Q. Okay and moving to that act, you said that it was just for a few seconds, is that correct?
A. Yes. Literally seconds.
Q. And you heard [the complainant] say no to you, is that correct?
A. Yes.
Q. Do you recall how many times she said that?
A. I heard her say it once and that’s when I stopped.
Q. And you did not know what she was saying the word “no” about, is that correct?
A. I thought she was saying no to the wrong hole.
Q. And why did you think that?
A. Just because as soon as I put my tip in, she said no and then I took it out …
[32] Under the complainant’s version, during the vaginal intercourse, “I was honestly scared for myself, like, I didn’t know if he could have had like a knife on him. I was just very scared and worried something bad was going to happen if I said like, if I just said, if I stopped or something. I was scared to get him upset because I didn’t know for my safety if he could have hurt me, I guess.”
[33] After vaginal sexual intercourse from behind occurred for five minutes, she moved onto her back. In examination in chief, she said:
Q. And so you told us it was about five minutes and then you switched positions onto your back, is that correct?
A. Yes.
Q. And how did you come to be on your back?
A. I moved myself and laid down.
Q. And how did you decide to move onto your back?
A. Um … not sure. I just guess -. I, I’m not sure.
Q. Did you say anything to Mr. Fryday at that time?
A. No.
Q. Did he say anything to you?
A. Not that I remember.
[34] In cross examination, she said:
Q. You moved yourself onto your back?
A. Yes.
[The emphasis was in the original oral question.]
[35] The complainant acknowledged that the accused alerted her he was about to ejaculate, and she told him not to do so inside of her as she did not want to get pregnant. He said, “That’s no fun,” but he complied and did not ejaculate inside of her. He ejaculated on her stomach.
[36] The complainant testified, “He didn’t have a condom, or used [sic] a condom, which I would have liked.” Later it was clarified that she did not recall if there was any discussion about using a condom. The accused testified that there was no discussion about using a condom or about birth control.
[37] The accused said they did not switch positions whereby the complainant went onto her back. When asked how the vaginal intercourse ended, the accused testified, “I said that I was going to come, and she said not to come in her, so I pulled out and ejaculated on her back.”
[38] The complainant acknowledged that she had told the police that the accused had ejaculated on her back. However, her trial testimony was that she is now sure that he ejaculated on her stomach because she remembers seeing his face.
[39] Both witnesses agree that the accused left the complainant’s apartment almost immediately after this. He said he was going to the convenience store to get cigarettes. She felt he rushed to get dressed and leave.
[40] The complainant acknowledged that she offered to go with the accused to the store to get cigarettes and he said no. She waited for some time and then texted him to see if he was coming back. When the accused said by text that he wasn’t sure he could come back because he had a panic attack and he has social anxiety, the complainant responded saying that she understood because she had similar social anxiety issues as well. The accused’s testimony essentially confirmed these points.
[41] The complainant acknowledged that it did not make her feel good when he left immediately after the sex.
Credibility and Reliability
[42] The complainant testified in a straightforward manner. On one occasion when she did not recall certain details, she said she was being careful not guess. I found her generally credible but, at times, unreliable. For instance, her inconsistency on whether the accused ejaculated on her back or on her stomach is a significant detail. Her explanation for why she told the officer this incorrectly is hard to understand but speaks more to reliability than to credibility. On this point, I have considerable uncertainty on whether the complainant shifted onto her back during the vaginal intercourse, as she explained. It is an important point because repositioning signals active participation in the vaginal intercourse and tends to contradict her evidence that she was frozen. I will return to this.
[43] The complainant’s initial statement that the accused “turned me around” was an overstatement as she later acknowledged she repositioned herself. It also struck me as potential embellishment or rationalization when the complainant described having a fear that the accused may have had a knife, when there was no evidence of this. These speak to potential concerns about her credibility.
[44] I also found the accused generally credible. He is 26. At age 20 he was diagnosed with Generalized Anxiety Disorder, Social Anxiety Disorder, and Obsessive Compulsive Disorder. This evidence was offered to explain his nervousness in testifying and his post-event conduct but had no other significant relevance. The accused spoke slowly but without apparent guile. He is not articulate. He did, however, give direct answers without evasiveness. The content of his testimony was, in general, internally consistent. He was not shaken during his cross examination.
Other Evidence
[45] On consent, the parties filed hospital records of the complainant which stated that an examination on November 20, 2019 revealed no trauma. Specifically, no tearing or bruising of the complainant’s anus or vagina were noted. Pelvic and rectal swabs were taken. The defence argues that the lack of trauma corroborates the accused’s version of events; however, the complainant did not allege that she sustained injury during the events in question.
[46] On consent, the parties filed a report from the Centre for Forensic Sciences. The accused does not dispute that the male DNA on the vaginal swab is his. The report also states there was male DNA found on the anal swab, but the amount of DNA found there was insufficient to allow for testing. The defence argues that the CFS evidence is consistent with the accused’s testimony that his penis was in the complainant’s anus only for seconds. Without more detailed expert evidence, I do not know if this conclusion is justified.
[47] On consent, the parties also filed copies of the Facebook Messenger messages that the accused and the complainant exchanged. After the events in question but before he was contact by police, the accused sent messages to the complainant including:
How come you ignored me that made me feel even shittier
Can we try and hangout again and maybe not rush into that quick
You made it like everything was okay then just stop talking to me
Is that all you wanted was a one night stand?
Well was nice meeting you I guess
[48] The defence argues that these messages are consistent with the accused’s belief that no sexual assault occurred. While it would be possible for someone to invent messages that appeared exculpatory or to bring a different perspective to what had occurred, there was nothing in the accused’s testimony or the other evidence to make me believe the messages were less than genuine.
Analysis
[49] It is not disputed that, although the complainant and the accused had just met, the initial sexual activity was consensual. It was also acknowledged that, after the consensual mutual oral sex, the complainant went onto her hands and knees, and by doing so she was suggesting she wanted vaginal sex.
[50] On the evidence, three potential theories for guilt arise:
a. The accused’s conduct of pressing down on the complainant’s head during the mutual oral intercourse instead of letting the complainant do it at her own pace was without consent and amounted to a sexual assault.
b. The anal intercourse initiated without consent was a sexual assault.
c. All the sexual activity (or at least the vaginal intercourse) was without consent from the moment that the complainant said “no” during the anal intercourse.
[51] In the Criminal Code, the starting point for the analysis of a sexual assault allegation is s. 265(1), which defines “assault.” That subsection says, in part, “A person commits an assault when … without the consent of another person, he applies force intentionally to that other person, directly or indirectly.” [Emphasis added.] Under s. 265(2), this definition of assault is said to apply to all forms of assault, including sexual assault.
[52] Not surprisingly, any degree of force, including any touching, can be sufficient to satisfy the requirement for the application of force: R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 SCR 371, at para. 10; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para 23; R. v. S.L., 2013 ONCA 176, at para. 35. Nevertheless, the Crown must prove beyond a reasonable doubt that the touching occurred. This is not typically an issue in sexual assault trials but is in play here under theory (a) because the accused denies touching the complainant’s head during the mutual consensual oral intercourse.
[53] There is also a requirement that the force must be applied intentionally. Again, this is not typically an issue in sexual assault trials because it is rarely asserted that the touching was accidental. However, here, this aspect is in play under theory (b) because the accused says when he inserted his penis in the complainant’s anus instead of her vagina, this was an accident.
[54] The issue most often encountered in sexual assault trials is whether the complainant consented to being touched. This issue was squarely in question in this trial under theory (c). The accused’s position is that the complainant did consent throughout. He claims that the “no” she expressed was not “no” to continued intercourse but to alert him that he had put his penis in the “wrong hole.” He asserts that she actively invited and actively participated in the vaginal sexual intercourse which followed.
[55] The elements of the offence of sexual assault are succinctly described in R. v. G.F., 2021 SCC 20 at para. 25:
The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused’s perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.
[56] The complainant was, of course, entitled to withdraw her consent at any time and the accused would be required to immediately stop. Parliament “wanted people to be capable of revoking their consent at any time during the sexual activity”: R. v. J.A., 2011 SCC 28, at para 40. I am mindful of Major J.’s comments in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 51:
[A] belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”. As Fraser C.J. stated at p. 272 of her dissenting reasons below:
One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. [Emphasis in original.]
I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.
Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable. In R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 79, the Court stated:
An accused who, due to wilful blindness or recklessness, believes that a complainant . . . in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: Criminal Code, s. 273.2(a)(ii).
[57] As far as the actus reus of the offence of sexual assault is concerned, it is only the subjective state of mind of the complainant that matters. The absence of consent “is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred”: Ewanchuk, at para. 26. It is not even necessary for the complainant to express the withdrawal of her consent for the actus reus to be established: J.A., at para 37. This is because the failure of a complainant to tell an accused to stop does not mean that the complainant must have been consenting: J.A., at para. 41. With that said, the communication of consent or lack of consent is considered in the mens rea analysis and is provided for in s. 273.1(2)(e) of the Criminal Code, which states that “no consent is obtained if … the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.” The Supreme Court held in J.A., at para 40, that “Since this provision refers to the expression of consent, it is clear that it can only apply to the accused’s mens rea.”
Theory (a)
[58] The theory that the accused committed a sexual assault by pressing down on the complainant’s head during the oral sex was not advanced in argument by the Crown but was raised by the complainant during her testimony, so I will address it.
[59] The accused denied pushing down on the complainant’s head during the mutual oral intercourse. He said, “I don’t know how I would do that in the position I was in.” As he was on his back, it seems plausible that he could have done it. However, I do not reject his denial because, as indicated, I found him to be generally credible, and I can find no reason to reject it. I am left with a reasonable doubt as to whether the described touching of the complainant’s head occurred. This is not because I found the complainant’s evidence on this point to be untruthful. I wish to emphasize that a criminal trial is not a contest between which of two narratives is the most believable. It would be an error for me to decide whether the accused committed a sexual assault based on whose description of what occurred I preferred or found more compelling. It is not my task to select which of two versions of the events is more likely, but rather to assess whether the Crown has proven its case beyond a reasonable doubt, with any reasonable doubt resolved in favour of the accused: R. v. J.H.S., 2008 SCC 30 at para. 14 to 16.
[60] The second element of the R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 analysis is applicable to this theory of guilt. The accused’s evidence raises a reasonable doubt. The actus reus has not been made out and conviction on this theory is not justified.
Theory (b)
[61] With respect to theory (b), based on the accused’s unshaken evidence I have a reasonable doubt as to whether the anal penetration was intentional. The accused testified that it was accidental. While I am skeptical of this evidence, it leaves me with a reasonable doubt.
[62] Again, the second element of the W.(D.) analysis is applicable. The accused’s evidence raises a reasonable doubt as to whether the anal penetration was accidental.
[63] I have not been provided (and I have not found on my own with brief research) any directly relevant precedent for either conviction or acquittal for sexual assault based on an alleged accidental anal penetration. I have therefore considered first principles. It is a basic principle that an accidental or careless application of force is insufficient to establish the mens rea for assault. Regina v Starratt, 1971 CanLII 541 (ON CA), [1972] 1 O.R. 227 (C.A.) is frequently cited for this proposition. If it is true that the accused intended to engage in vaginal intercourse (to which the complainant was consenting) and he accidentally and briefly penetrated the complainant’s anus without her consent, he had a morally innocent state of mind. The mens rea has not been established for this theory of guilt.
[64] The reasonable steps requirement under s. 273.2 of the Criminal Code is not engaged because the accused does not assert that the complainant consented to the anal penetration.
[65] On this basis, a conviction under this theory is not warranted.
Theory (c)
[66] Theory (c) depends on a finding that the complainant stopped consenting to the sexual activity. As already stated, the Crown concedes that the initial sexual activity was consensual but argues that the complainant withdrew her consent when she said “No.”
[67] It is not disputed that the complainant said “No” at the point where the accused inserted his penis into the complainant’s anus. It is the Crown’s position that lack of consent was crystallized at that time and the accused had a duty to take reasonable steps before resuming any sexual activity. Mr. Tang argued that the accused was not entitled to assume that the “no” referred only to anal intercourse. Recalling that the evidence was that within seconds after the brief anal intercourse, vaginal intercourse took place, he argued that no reasonable steps were taken. Further, given that the complainant and the accused had not previously met or even spoken on the phone, the “reasonable steps” the accused was required to take minimally included making inquiries about proceeding with further sexual contact. He further argued that the complainant’s testimony that she was “frozen” should be accepted.
[68] The first question under this theory of guilt is whether the Crown has established, beyond a reasonable doubt, the complainant’s lack of subjective consent to vaginal intercourse after she said “no” when the accused put his penis in her anus. If the Crown has not established this lack of consent, beyond a reasonable doubt, that ends the matter and it is not necessary to analyze whether the accused took reasonable steps.
[69] The complainant was not directly asked whether, after the anal penetration, she no longer consented to vaginal sexual intercourse. But she was asked about her state of mind and she testified she was in fear. Despite the lack of direct evidence from her about whether she consented, it is clearly appropriate to infer that her current position is that at the time she did not consent in her own mind.
[70] Ms. Landry argued that the complainant’s statement she was afraid should not be accepted. Ms. Landry acknowledged that there is no prescribed way that a complainant will respond to a sexual assault but, at the same time, the accused must be entitled to challenge the complainant’s assertion she was afraid. Ms. Landry argued that the complainant was not too afraid to say no to anal intercourse, and the accused complied when the complainant verbalized her lack of consent to this. She was also not too afraid to ask the accused not to ejaculate inside of her when he said he was close to ejaculating, or to state that she did not want to get pregnant, and the accused complied with her wishes in this regard as well. With the accused complying with her every request, there was no basis for fear, and thus in this case the circumstances raise a reasonable doubt about consent. Further, the complainant’s offer to go with the accused to the store to get cigarettes and her text saying she understood why he was not coming back were inconsistent with fear.
[71] Ms. Landry referred me to R. v. Solomon, 2020 ONSC 2640, a summary conviction appeal, where it was held at para. 42 to 44:
As with any witness in any type of case, the evidence of a complainant in a sexual assault trial must be assessed rationally and objectively in the context of all the evidence at trial, and with regard to the burden of proof.
The recognition that not all complainants will fight back or cry out in response to a sexual assault, and that complainants may react in different ways to a sexual assault, and that assuming either of those things is a rape myth, does not have the effect of prohibiting a trial judge from assessing, based on the evidence before them, whether or not they accept as credible a complainant’s assertion that they complied with a request for sex out of fear, and whether that assertion is consistent with the whole of the evidence, or not. In assessing credibility of the evidence of a complainant (or of any witness), a trial judge must consider the totality of the evidence, “including any ambiguous or contradictory conduct by the complainant”: Ewanchuk at paras. 29-30, 61; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 60-65; R. v. Holland, 2020 ONSC 846 at para. 89.
[72] Judges must avoid the pitfall of relying on assumptions and stereotypes about how sexual assault victims will behave. The cases of R. v. A.R.J.D., 2018 SCC 6, aff’g R. v A.R.D., 2017 ABCA 237, R. v. A.B.A., 2019 ONCA 124, and R. v. Lacombe, 2019 ONCA 938 are prime examples showing reasoning which must be avoided.
[73] The concern most applicable here is that when a sexual assault is occurring, fear is a common reaction for the victim, and passivity or submission is a common response to that fear. If the complainant was afraid, it would not be surprising that she would be “frozen” or would submit. Victims will react and behave idiosyncratically, but we know submission is one of the common reactions that victims have.
[74] In this case, for roughly five minutes after the anal penetration, the accused and the complainant engaged in vaginal intercourse from behind. On her own evidence, this was really the only time the complainant exhibited passive behaviour. This passive behaviour is not inconsistent with a lack of consent.
[75] The defence argument that the fact that the complainant said “no” shows she was not in fear does not hold water. When the complainant objected to anal intercourse, this was not submission, but it is not inconsistent with fear that she said no when this occurred.
[76] Similarly, when the complainant asked the accused not to ejaculate inside of her, this cannot be said to be evidence of a lack of fear. Whether she was consenting or not, in fear or not, “frozen” or not, when the accused said he was close to ejaculating, any woman in the complainant’s circumstances might well jump at the opportunity to ask that he not ejaculate inside of her. The fact that the complainant did this does not mean she was not in fear.
[77] These features do not necessarily detract from the complainant’s credibility.
[78] At the same time, the complainant’s active behaviours do raise doubts about her state of mind. I said above that I have considerable uncertainty on whether the complainant shifted onto her back during the vaginal intercourse. Her trial testimony on this point was inconsistent with her police statement and was inconsistent with the accused’s evidence. I said that repositioning signals active participation in the vaginal intercourse and tends to contradict her evidence that she was “frozen.”
[79] It is interesting that the accused’s version is that the complainant did not move onto her back. But he did describe active participation by her. He said he even asked her if she liked it and she said that she did.
[80] On either version, the complainant seems to have been, to some extent, an active participant in the vaginal intercourse. I accept the defence argument to the extent that active participation suggests willingness and tends to indicate consent.
[81] Finally, while it is by no means determinative, I agree that the complainant’s offer to go to the store with the accused and the reassuring text message she sent him afterwards about social anxiety also raise doubts about whether she was in fear.
[82] These factors, in combination with the accused’s testimony about the complainant’s active participation in the sexual activity, and my small concerns about the reliability and credibility of complainant leave me with a reasonable doubt about consent.
[83] Based on the totality of the evidence, I have a reasonable doubt regarding the complainant’s trial testimony about what was in her mind at the time. I have a concern that her recollection has been recast by subsequent events, including the way she must have felt when the accused abruptly left her apartment within minutes and did not return. I therefore have a reasonable doubt as to whether the actus reus has been established under this theory.
Disposition
[84] The accused is acquitted.
“Chown J.”
Released: January 13, 2022