R. v. Hayes, 2022 ONSC 4086
COURT FILE NO.: CR-21-0025
DATE: 2022/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.H.
COUNSEL:
Catherine Weiler for the Crown
Michael Miller for the Accused
HEARD: May 16, 17, 18, 19 and 20, 2022 at Thunder Bay, ON July 19, 2022 via teleconference
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE.
REASONS FOR JUDGMENT
Justice A. Doyle
Overview
[1] The accused, J.H., is charged that between April 26, 2001 and August 31, 2004 at the City of Thunder Bay did commit a sexual assault on M.E. contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”).
[2] The undisputed facts are that on April 26, 2001, Det. Cst. Noel Berlinquette (now Inspector) was assigned to investigate a domestic assault and attempted murder involving victims M.E. and her mother S.L. M.E. and S.L. lived in a bungalow on a small lake in the vicinity of Armstrong highway.
[3] J.H., who was an Ontario Provincial Police (“OPP”) constable at that time, was assigned to assist Det. Cst. Berlinquette that evening.
[4] M.E. and her mother were attacked by the mother’s partner, D.P., at their home. D.P. had punched M.E. in the face several times, shot at her and her mother several times with his shotgun, and pointed a firearm at M.E.’s face.
[5] M.E. and S.L. were taken to the hospital for treatment and Officers Berlinquette and Hayes met them there. J.H. took a statement from M.E. between 3:00 a.m. and 3:20 a.m. that day and he documented her address and phone number.
[6] Once they had received treatment, M.E. and her mother were driven to the OPP detachment to provide a videotaped statement.
[7] At the OPP detachment, J.H. assisted with a video interview of M.E. commencing at 4:18 a.m. and ending at 5:56 a.m.
[8] The intensity of the incident was manifested by how upset M.E. was during her trial testimony when she described the incident that involved her stepfather.
[9] At the OPP detachment, J.H. gave M.E. his business card and private cell phone number if M.E. needed someone to talk to about this experience.
[10] M.E. did contact J.H. and they discussed the domestic violence incident. She testified that she could not do so with her mother and friends. She was angry and upset with her mother that D.P., who was abusive, had been permitted to live in their home.
[11] On one occasion, while M.E. was staying at a hotel, J.H. took M.E. for a drive and a milkshake. J.H. indicated that he wished to remove M.E. from an emotional situation where she and her mother had heard for the first time that D.P. had died from self-inflicted wounds during the incident.
[12] A friendship developed between M.E. and J.H.. They communicated by phone and email, he took her out for a ride-along, he would drop by the house where she lived with her mother, he came over once to show her some self-defence maneuvers, and they once went to a local park where they chatted.
[13] The last contact before this charge was laid was sometime in 2006 when M.E. called J.H. asking him to be a reference for a job application.
[14] In 2019, M.E. came forward and alleged that J.H. had sexually assaulted her in her mother’s home where he pushed her on her bed, kissed her, and rubbed his groin against her. She reported that she did not consent to this sexual touching.
[15] In contrast, J.H. denies this incident but describes consensual touching in the kitchen in her home. He stated there was some kissing and that they moved to the couch with him on top of her. The whole incident was brief and consensual.
Evidence of the Crown
[16] The complainant, M.E., is a 38-year-old psychotherapist working in northern Ontario.
[17] M.E. described J.H. as a friend and not someone she was romantically interested in.
[18] M.E. confided her feelings to J.H. about the domestic assault incident and life with D.P. She was angry and resentful. She did not believe she could talk to her mother or her friends about it.
[19] M.E. describes her memories of the meetings and contact with J.H. “in silos”. She described the events as separate events and was unable to determine the timeline or the order of their occurrences. She was unable to detail what occurred before or after her meetings with J.H..
[20] M.E. recounted that in 2019, while speaking to a client’s mother through her work as a psychotherapist, she was reminded of the trauma with D.P. This client’s mother had had a similar experience.
[21] That night, she had a nightmare. She told the Special Investigation Unit (“SIU”) that the dream was sexually disturbing. At the preliminary inquiry, she testified that J.H. was in the dream and telling another person to cut her tongue.
[22] As a result of this dream, she called the OPP where J.H. worked and the OPP referred her to SIU.
[23] M.E. alleges the following sexual assault. J.H. came to her home. M.E. says her mother was not there when J.H. arrived at her home.
[24] She remembers being at the foot of her bed in her home. She does not remember how she and J.H. got there but they were facing each other. J.H. pushed her on the bed, placed his body on top of her, kissed her, and rubbed his groin against hers. She said she was trying to figure out how to get out of this situation. She told him that this was not good for his wife and family. J.H. immediately stopped and removed himself from her.
[25] M.E. alleges that J.H. never asked her consent. She did not give her consent.
[26] M.E. testified that she realized that it was a sexual assault while speaking to SIU about this incident in 2019.
[27] She testified that, at the time of the alleged sexual assault, she did not have a label for what happened to her.
[28] S.L., the mother of M.E., testified that she recalled that one day, M.E. told her that J.H. was coming to their home. S.L. had changed her counselling appointment so she could be there when J.H. arrived at the house. She left for her appointment after J.H. arrived.
[29] S.L. testified as to why she responded like that. The mother stated that had “spidey sense” about the relationship between M.E. and J.H. which meant that she was concerned and she was keeping an eye on matters.
[30] S.L. was experiencing anxiety with regards to the relationship. M.E. was going through a lot, and she did not like police around. She stated that she was worried as a mother should be.
[31] She says that M.E. did not see her relationship with J.H. as a romantic relationship. She and her daughter were very close, and she was not concerned in that regard.
[32] After the self-defence manoeuvres, upon her arrival home, M.E. told S.L. that J.H. had become confused, his lines were blurred and that something had happened on the couch. When she asked her daughter whether she wanted to make a report, M.E. said nothing happened and everything was under control. M.E. stated that she needed him as a friend, needed someone to talk to, and it would not happen again.
[33] M.A. was a Crown witness who had been friends with M.E. for over 20 years.
[34] M.A. testified about an incident when she was called by M.E. because M.E. had an unwanted guest in her home.
[35] M.A. came over immediately and put on a drama scene feigning a breakup with her boyfriend. M.A. felt that if she was demonstrating serious emotional upset, M.E.’s unwanted guest would leave.
[36] The unwanted guest did eventually leave. After his departure, the women had a good laugh about how dramatic M.A. had been.
[37] M.A. described the unwanted guest as a fat and pudgy man who was at the bottom of the staircase of M.E.’s home when she arrived. The court heard evidence that J.H. was slim, fit, and muscular at the time. M.E.’s evidence on this incident was that it was J.H., and he was actually in her home when M.A. arrived.
[38] Inspector Berlinquette confirmed his attendance with J.H. at the hospital to see M.E. and her mother after the domestic violence incident and that they brought them both to the detachment to obtain videotaped statements.
Evidence of Defence
[39] J.H. testified that after the domestic violence with her stepfather, M.E. was very upset and angry. She confided in him, and they became very good friends.
[40] He believed that he was the only one that she could discuss the incident with as he knew the details.
[41] Their friendship grew and there appeared to be a bond growing to the point of romantic interest.
[42] Although he was married, there were issues in his marriage. He enjoyed his time with M.E., and he believed that she enjoyed her time with him.
[43] They communicated by phone, email, and had visits together. He came over to the house to show her self-defence manoeuvres and took her to a local park (Trowbridge Falls).
[44] Regarding the incident with the kissing, he stated that she consented to the kissing and to laying together on the couch where they continued to kiss.
[45] He denies that he pushed her on the bed or that the incident occurred on the bed.
[46] He was contrite about his relationship with M.E. and stated that his relationship was not appropriate given his marriage and young family.
Position of the Crown
[47] The Crown submits that J.H. is guilty of the sexual assault of the complainant.
[48] The Crown submits that the complainant’s evidence was internally consistent on the central points. While the evidence of the complainant and her mother was not identical on every point, it shows that there was no collusion. Their evidence was consistent on all the important points. There is credible evidence that contradicts any assertion of recent fabrication or subsequent fabrication after that night.
[49] In addition, the Crown submits as follows.
[50] M.E.’s and J.H.’s evidence overlaps. They do not dispute on how they met, that J.H. was a support to her, that they had contact, that she went on a ride-along with him, that he showed her some self-defence manoeuvres, that they had a meeting at Trowbridge Falls, and that there was a separate incident involving kissing and touching. There was also an occasion when J.H. came to her home to show her his uniform after he completed his emergency response course.
[51] She was emphatic that there was not a romantic relationship and was consistent that she did not consent to his touching.
[52] Although her evidence does not need to be corroborated and confirmed by other witnesses, her evidence was confirmed by other witnesses.
[53] The Crown argues that there were no material inconsistencies between her evidence given in her statement to SIU, at the preliminary hearing, and at trial.
[54] Alternatively, the Crown submits consent was vitiated as J.H. abused his position of authority and trust to obtain the complainant’s consent.
Position of the Defence
[55] The defence submits that M.E. consented to being touched in a sexual manner. Hence, the Crown has failed to prove the actus reus of the offence.
[56] Their relationship had commenced when she was victim in a domestic dispute and she had come to trust J.H. to discuss the trauma she had experienced, which she was unable to do with her mother or friends. She was able to confide in him her feelings about D.P. and the abuse that she had tolerated for years leading up to the night of April 26, 2001, when D.P. attacked her and her mother.
[57] J.H. submits that their relationship had grown over time, that there had been flirting between the two of them, and they were able to share very personal details with each other resulting in their relationship growing fonder.
[58] Regarding the alleged sexual assault, he indicates that they both communicated non-verbal consent that they would kiss. The kiss consensually developed so that both of them were laying together on the couch. They continued the kissing for a brief time. Although he did not ask her directly, her body language, gestures, and her movement towards him told him that she was consenting to them touching.
[59] Alternatively, the defence argues that he did not have the mens rea as he had an honest but mistaken belief that M.E. had communicated consent. There is an air of reality to this defence as manifested in her conduct and behaviour clearly showing she was consenting to the sexual activity.
[60] He took reasonable steps to ensure that she was consenting to the sexual activity.
Analysis
Legal Framework
Overarching principles
[61] The issue that this court must decide is whether the Crown has proven each of the elements of the alleged offence beyond a reasonable doubt.
[62] J.H. is presumed to be innocent, unless and until the Crown proves his guilt beyond a reasonable doubt.
[63] The obligation never shifts. J.H. did not have to present evidence, but he did testify on his own behalf denying that this alleged incident ever occurred. J.H. is not required to prove anything.
[64] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence or lack of evidence.
[65] It is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court stated that the standard of proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.”
[66] In this decision, I will review the evidence of the Crown, discuss J.H.’ evidence in accordance with the Supreme Court’s direction in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and then analyze the evidence to determine if the Crown has proven the charge beyond a reasonable doubt.
Sexual Assault
[67] The Crown must prove the actus reus, that the complainant was intentionally touched in a sexual manner by the accused and that she did not consent to this.
[68] The issue of M.E.’s consent is central to the defence. Therefore, a summary of the law is appropriate.
[69] The Crown must prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. Consent is determined by reference to the complainant's subjective internal state of mind towards the sexual activity, at the time it occurred. The accused’s state of mind is irrelevant at this juncture.
[70] The Supreme Court of Canada in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, reiterated the law as it relates to consent and sexual assault. At paras. 87 to 89, the Court described the role of consent as a part of the actus reus as follows:
A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).
“Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and "the identity of the partner”, though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57).
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).
[71] As stated in Barton, consent means that the complainant had affirmatively communicated by words or conduct to engage in the sexual activity: see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330.
[72] One form of sexual activity is not agreement to any or all forms of sexual activity. For example, an agreement to some force is not agreement to greater force; an agreement to touching one part of the body is not agreement to touching other parts of the body; an agreement to one form of touching is not agreement to all forms of touching. In addition, a person may revoke consent or limit its scope at any time.
[73] Silence does not constitute consent. Lack of resistance does not amount to consent, nor does acquiescence to the inevitable: see R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3.
[74] Even if the complainant consented to the sexual activity, the consent can be vitiated as a matter of law.
[75] In R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, the Supreme Court described how subjective consent can be vitiated at paras. 33-36:
If the complainant did not subjectively consent (for whatever reason) then the actus reus is established. However, the presence of subjective consent, or a reasonable doubt as to subjective consent, does not necessarily end the matter and result in an acquittal. There is a second aspect to “consent” for the purposes of the actus reus of sexual assault — subjective consent must also be effective “as a matter of law”: Ewanchuk, at paras. 36-40; see also R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161, at para. 15. Another way of framing that question is to ask whether the subjective consent has been vitiated.
Whether subjective consent will not be legally effective is ultimately a matter of policy. The law steps in to say that despite the complainant’s subjective agreement, it will not be given legal effect. Sometimes, the policy that vitiates consent comes from the common law. Other times, the policy is codified. In the context of sexual assault, the Criminal Code sets out a series of factors that will vitiate subjective consent in ss. 265(3) and 273.1(2).
Section 265(3) sets out four factors that will vitiate subjective consent to sexual activity. Subjective consent will not be given legal effect where it is the product of force, threats or fear of force, certain types of fraud, or the exercise of authority: s. 265(3)(a) to (d). Section 273.1(2)(c) also vitiates subjective consent where the complainant is induced into sexual activity by the accused abusing a position of trust, power, or authority: Hutchinson, at para. 4. When subjective consent is the product of these factors, the complainant has been deprived of control over who touches their body, and how, and there is no consent in law: Ewanchuk, at paras. 28 and 37-39; Saint-Laurent v. Hétu, 1993 CanLII 4380 (QC CA), [1994] R.J.Q. 69 (C.A.), per Fish J.A.
However, these factors do not prevent subjective consent. Rather, they recognize that even if the complainant has permitted the sexual activity in question, there are circumstances in which that subjective consent will be vitiated — deemed of no force or effect. The distinction between preventing subjective consent and rendering it ineffective may be subtle, but it is important. A factor that prevents subjective consent must logically be linked to what subjective consent requires. Conversely, a factor that vitiates subjective consent is not tethered to the conditions of subjective consent and must find footing and justification in broader policy considerations.
[76] In R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161, the Ontario Court of Appeal confirmed that s. 273.1(2)(c) not only speaks to the abuse of a position but also to the misuse of a position of power or trust. The consent to the sexual activity can be vitiated by the dynamics of the relationship between the accused and the complainant. For example, when the individual who is in a position of trust over the complainant uses personal feelings and confidence in the relationship to obtain consent to the sexual activity.
[77] This section has a broader ambit than s. 265(3)(d), which suggests a coercive use of authority to overcome resistance.
[78] Once the Crown has proved the actus reus beyond a reasonable doubt, the Crown must also prove the mens rea. That is, that J.H. knew that M.E. did not consent to the sexual touching that J.H. intentionally applied.
[79] The focus at this stage shifts to the mental state of the accused as to whether he honestly believed that the complainant effectively said “yes” through her words and/or actions.
[80] When an accused puts forth an affirmative defence, he must meet the standard of “air of reality”. This acts as a filter to prevent the trier of fact to be distracted or confused by hopelessly unrealistic issues.
[81] When carrying out the air of reality test, the court may be required to engage in a limited weighing of the evidence to determine whether it can be inferred from the evidence.
[82] Where the air of reality to honest but mistaken belief in communicated consent exists, the onus shifts to the Crown to negate the defence. That is, the Crown must prove beyond a reasonable doubt that the accused did not take reasonable steps to determine consent.
[83] Mistaken belief cannot flow from the accused’s self-induced intoxication, recklessness, or wilful blindness in accordance with s. 273.2 (a)(i) and (ii) of the Code.
Credibility/Reliability
[84] Both parties describe some sexual activity taking place although they differ in what and how it occurred.
[85] The real issue is whether there is sufficiently reliable evidence that the complainant did not consent to whatever sexual activity took place and, in the alternative, that even if there were consent it was not vitiated as a result of the power imbalance.
[86] I must assess the credibility and reliability of the witnesses.
[87] Firstly, I must be careful not to hold the defence evidence to a level of scrutiny higher than that of the Crown.
[88] The verdict must not be based on a choice between the evidence of the accused and the Crown’s evidence. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, this type of approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt.
[89] The burden of proof never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. The court must not treat “conflicting testimonial accounts” as a credibility contest and must not decide based on whether the court accepts one version or the other. The lack of credibility of the accused does not mean that proof of his guilt has been established beyond a reasonable doubt.
[90] In R. v. B.D., 2011 ONCA 51, 273 O.A.C. 241, the Court of Appeal stated at para. 114: “[w]here, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.”
[91] Secondly, I must assess credibility and reliability very carefully. At this point, it is important to explain the distinction between these two concepts.
[92] Credibility has to do with the honesty or veracity of the testimony of a witness, whereas reliability has to do with the accuracy of the testimony of the witness. The reliability of the testimony of a witness is often gauged by the ability of the witness to observe, recall, and recount the events at issue: see R. v. Sanichar, 2012 ONCA 117, 92 C.R. (6th) 303, at para. 70, citing R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.
W.(D.) Analysis
Introduction
[93] Although it is a fundamental principle that an accused is not required to testify, where he chooses to do so, as J.H. did in this case, the law in W.(D.) requires that I take the following approach:
i. If I believe J.H.’s evidence that he did not commit the offence, I must find him not guilty;
ii. Even if I do not believe J.H.’s evidence, if it leaves me with a reasonable doubt about his guilt, or an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
iii. Even if J.H.’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
[94] The Crown submits that the court should reject his evidence because of major inconsistencies and the implausible nature of his evidence.
[95] The court should accept M.E.’s evidence that she never wanted a sexual relationship, which rebuts the presumption that there was mutual kissing.
Discussion of J.H.’s Evidence
[96] At its core, the accused’s testimony was simple and straightforward. He denied the allegations.
[97] Firstly, his evidence differed from M.E.’s evidence regarding the nature of their relationship.
[98] His evidence focussed on the growing relationship he believed that he had with M.E. as she confided in him and as he gave her personal details of his life.
[99] He testified that during the first year of their relationship, she confided in him that she was angry with her mother and upset with D.P. and the fact that she could not tell her mother that she was glad D.P. was dead.
[100] As they were in regular contact, they were becoming close and sharing personal details. He told her about his marriage to his wife was motivated by an unexpected pregnancy and other personal information.
[101] They spoke a lot. He testified that there was some flirting and touching (“brushing”) against each other while watching the river at the dock at her place.
[102] His evidence contradicts M.E. and the mother as to how often he would visit the home. The mother could not confirm how often he came.
[103] He testified that they were becoming romantically involved.
[104] With respect to the kissing incident, his evidence was internally consistent.
[105] One time, in late 2001 or early 2002, he testified that he and M.E. were in the kitchen.
[106] The accused acknowledged that at no time did he seek any permission for any sexual touching or activity that day. He acknowledged that there was no discussion between the two of them about any kissing. Rather, there was mutual attraction that had developed, they both moved towards each other, and neither party asked the other if they could be kissed. Gentle kissing took place but there was no French kissing. M.E. consented to the sexual touching by her body language and conduct.
[107] The photo of M.E.’s home (“photo of the home”) at the time shows that there was a candle, an answering machine, and what appears to be a phone on the kitchen counter. M.E. had a brief conversation on the phone and returned to kissing him. They both moved to the couch. Their torsos were touching on the couch, and he indicated that he had his arms braced so he would not have his weight on her. Their torsos touched but he was not square on. He had his arms braced so his full weight was not on her. He denies that he was rubbing and grinding his torso against her torso.
[108] He indicated on the photo, that they were near the counter not far from the phone.
[109] J.H. testified that he does not remember whether it was he or M.E. that raised the issue of him being married with young children when they were on the couch. He removed himself from her.
[110] They sat on the couch and talked a while about him being married and he stated that M.E. said that if he were not married they could have fun together.
[111] He denied that it was inappropriate for a police officer to be befriending a victim of a violent, domestic crime. They became friends after the incident and she was no longer a victim, witness, or confidential informant.
[112] J.H. asks the court to consider the spontaneous, intimate, and physical attraction of he and M.E. There was mutual consent to active participation in the kissing and lying on top of each other and this is evidence of her consent by her actions.
Discussion
[113] For the reasons set out below, I do not accept J.H.’s evidence, nor do I find that his evidence leaves me with a reasonable doubt.
[114] Firstly, with respect to his relationship with M.E., there were many contacts and discussions of personal details, including how M.E. was feeling. I accept that M.E. and J.H had developed a friendship with the characteristics of closeness and confidence. But I do not accept that their relationship was as romantic as J.H. believes it was.
[115] M.E. was the victim of a horrific and traumatic domestic violence episode where she was confronted with possible life consequences. Firearms were involved and she was the target of assaults. It would be an understatement to say that this event was physically and emotionally charged and left M.E. traumatized as a young adult.
[116] The court notes that M.E. admitted that she did not share the details of the domestic violent episode or her relationship with J.H. with her mother or friends. Hence, his friendship was not the usual friendship that she shared with others.
[117] The parties’ relationship had become close and it would appear there may have been opportunities for their bodies to be close, such as during the self-defence demonstrations given by J.H.
[118] In cross-examination, defence vigorously cross-examined M.E. with respect to her statement to SIU by suggesting that their friendship was more than just a platonic friendship and that she was upset that J.H. and his wife still had a life together. When J.H. told M.E. that his wife was pregnant for a third time, M.E. told SIU, at p. 53 of the excerpt from the SIU statement, “Whoa….. holy shit what is going on?”
[119] In my view, there is more than one inference that can be drawn from her reaction. As per her evidence at trial, an inference could be that she was surprised and thought that they were good friends and he had not confided this personal detail to her, or that she was upset that another pregnancy would mean J.H. was committed to his wife, or an inference could be drawn somewhere in between, i.e., that she was more than a friend.
[120] In her testimony, M.E. was emphatic and consistent that she was just J.H.’s friend and she never saw him as a romantic partner. This was confirmed by her mother and her friend, M.A.
[121] Therefore, the above evidence confirms that they had very close friendship rather than a deep romantic relationship.
[122] They may have both been “in the moment” as J.H described the kissing/touching incident but I do not accept that M.E. had strong romantic feelings for J.H. as he described.
[123] Next, in his evidence, there was some internal inconsistencies. J.H. was attempting to minimize the touching of their bodies on the couch. In cross-examination, he stated his arms braced his body over M.E.’s body. However, in examination in chief, he did indicate that their torsos and legs were touching and intermingled.
[124] There was some corroborating evidence as the location of the kissing/touching as suggested by the mother lines up with J.H.’s evidence.
[125] Also in cross-examination, the Crown submits that J.H. “slipped” in his testimony and mentioned the bed but later retracted this and said it was the couch.
[126] He denied at some point that the touching was sexual in nature.
[127] He also was inconsistent with respect to the kissing. He was unsure how much kissing was done or whether it was continuous (except for the phone call).
[128] With respect to how the kissing/touching ended, he was not consistent in his evidence. In chief, he stated he did not know who brought it up first, which ended the kissing/touching. The evidence indicates he was emotionally involved with M.E. and it is unlikely that he would have brought up his family. He did confirm that she said something but he does not recall what she said.
[129] Therefore, I do not accept his evidence, nor does it leave me with a reasonable doubt.
[130] However, for the reasons set out below, after considering all the evidence that I do accept, the Crown has failed to prove the charge beyond a reasonable doubt.
Assessment of the Complainant’s Evidence
Introduction
[131] Given that the actus rea is determined by reference to M.E.’s subjective internal state of mind, her evidence will be reviewed to determine if the Crown has proven this element of the offence.
[132] In determining whether lack of consent has been proven beyond a reasonable doubt, the court will consider all the evidence, including the circumstances surrounding J.H.’s physical contact with M.E., to decide whether M.E. did not consent to it.
[133] Paragraph 29 of Ewanchuk states:
29 While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
Discussion of M.E.’s Evidence
[134] The assessment of the complainant’s reliability is a factual assessment. My focus will be on: the complainant’s various accounts over time, looking at the consistencies and inconsistencies; the proximity in time between the alleged incident and the first and early recollections of the accounts; the frequency of recollection; whether the memory was influenced by other factors; and what information went into the memory from the start: R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89 (C.A.), at paras. 110-11.
[135] The complainant was consistent in examination-in-chief and cross-examination with respect to certain details of the incident that led to the charge before the court.
[136] She stated that:
i. She and J.H. were in the bedroom at the foot of her bed;
ii. She was pushed on the bed by J.H.;
iii. J.H. kissed her;
iv. J.H. was on top of her on her bed;
v. J.H. rubbed his groin against her body;
vi. There was back and forth rubbing;
vii. She was not aware of an erection; and
viii. There was no French kissing or any contact between their genitals.
[137] The contact ended when M.E. reminded him of his family.
[138] She also provided the detail of the smell of his jacket that he had on at time of the kissing/touching incident. This was the same jacket that he had let her use at the time of the incident with D.P. The smell was the same.
[139] M.E. consistently maintained that after this alleged assault she was careful not to be alone with J.H. as she did not want unwanted sexual touching.
[140] She was candid about what she remembered happening before the sexual assault and admitted to the gaps in her memory regarding the sequence of events, the phone conversations, and the timing of events. She admitted to requesting a reference from J.H. as “a reality”.
[141] Some aspects of her evidence, although it is not needed to be confirmed, was confirmed by other witnesses. In R. v. Demedeiros, 2018 ABCA 241, 74 Alta. L.R. (6th) 1, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568, at para. 8, the court defines confirmatory evidence as “often merely other circumstantial evidence that tends to support the Crown’s case, or to dispose of alternative hypotheses put forward by the defence. Such evidence can be given weight even if it does not directly ‘confirm the key allegations of sexual assault’ or ‘directly implicate the accused’.”
[142] Other Crown evidence confirmed the following: the meeting with J.H. at the Landmark Hotel, J.H. taking her for a milkshake (her mother remembers this), the ride-along in his vehicle (confirmed by J.H.), that J.H. came to her place to demonstrate self-defence moves (confirmed by her mother, although neither J.H. nor M.E. remember the mother being present when he arrived); that they were alone at her home and there was sexual kissing and touching (confirmed by J.H.); that she and J.H. met at Trowbridge Falls (confirmed by J.H., although he does not recall telling her about his upcoming third child)
[143] The Crown argues it was reasonable for them to discuss this and that such a conversation during a polite and friendly meeting at Trowbridge Falls lines up with the M.E.’s description of the meeting there. Also, she testified that J.H. went to her apartment (M.A. confirmed this, although admits her description of J.H. did not match his physical appearance at the time and the details of the meeting were different).
[144] The Crown argues that M.E. was 18 years old and attending high school while J.H. was 26 years old which would mean that the sexual kissing/touching occurred shortly after the incident with D.P.
[145] Yet, the timing of the sexual assault with M.E. in her evidence in chief is not clear from her evidence.
[146] At first, M.E. stated that it was within one year of meeting J.H., then in cross-examination, she was not sure if it was before or after the meeting at Trowbridge Falls. Her order of meetings with J.H. is uncertain.
[147] The Crown expanded the time frame in the indictment to August 2004 in the event that the sexual assault occurred after their meeting at Trowbridge Falls.
[148] J.H. believed it occurred in late 2001 or spring 2002.
[149] M.E. was cross-examined for one and a half days. There were some peripheral inconsistencies regarding whether police told her not to treat her injuries so she would look worse in the photos of the domestic violence incident. In my view, this is of no consequence.
[150] I note that in R. v. Roy, 2017 ONCA 30, the Ontario Court of Appeal stated that minor inconsistencies do not detract from the core details of the sexual assault.
[151] The defence invited the court to consider the fact that there was a delayed reporting of the incident.
[152] The Supreme Court stated in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[153] Therefore, a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant: see R. v. Marshall, 2017 ONCA 1013, at paras. 19-21; R. v. Watson, 2019 ONSC 1899, at para. 82.
[154] I am not prepared to accept defence’s reasoning based on myths or stereotypes should detract from her credibility, that is, asking impertinent and irrelevant questions such as:
i. Why would she continue to contact him and spend time with him if he sexually assaulted her?
ii. Why did she take 18 years to complain?
iii. Why did she contact him for a reference if he sexually assaulted her?
[155] That is, the court heard that M.E. kept in touch with J.H. after the alleged sexual assault, phoned him, met him at Trowbridge Falls, and years later asked him for a reference. The court is not prepared to find that this behaviour is contrary to how a victim of sexual assault would act. These are prohibited inferences.
[156] In my view, to suggest that these contacts and meetings detract from her credibility as a complainant would lead to stereotyping sexual assault victims and how they behave.
[157] Martin J. described the dangers associated with myth-based and stereotypical reasoning in R. v. C.M.G, 2016 ABQB 368, 41 Alta. L.R. (6th) 374, at para. 60:
Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certain people behave in particular situations. They often involve an idealized standard of conduct against which particular individuals are measured. Sometimes general, assumed or attributed characteristics are applied to a particular individual or circumstance, often without an analysis of whether there is any merit in the general assumption or whether it truly applies in a particular situation.
[158] However, I find that there are problems with M.E.’s evidence.
[159] As stated by the Ontario Court of Appeal in R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at para. 14:
The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown’s case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses’ credibility and reliability. As Rowles J.A. emphasized in R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.A), these issues are not to be determined in isolation. She said at p. 9:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented. [Emphasis added.]
[160] In Gostick, an important consideration in the determination of credibility is the extent of consistency of the testimony of the witness within itself and with other evidence that the trier of fact accepts. That is, whether the evidence is contradicted by other uncontroverted or proven evidence. If there is a contradiction, the trier must then determine the seriousness of the contradiction, that is, whether it involves a minor or peripheral matter or whether it is a material inconsistency that goes to an essential element of the Crown’s case.
[161] Firstly, M.E. repeatedly asserted that she remembered events only in silos and cannot recall events immediately before and after the event. Although, this does not necessarily mean that she is not credible, it does raise concerns with respect to the reliability of her evidence.
[162] Her evidence regarding her encounters with J.H. are segmented memories and these memories did not change but at times almost came across as scripted. Dozens of times she said, “I don’t recall”.
[163] She had no recollection of how she ended up in the bedroom but just remembers being face to face with J.H. at the foot of the bed. Despite questions, she did not remember the location of bed or the details of what led them to be at the foot of the bed or in her home on that occasion.
[164] Second, she was not prepared to consider any evidence that she perceived would be in J.H.’s favour. For example, she admitted they had a good friendship at the preliminary inquiry but at the trial was not prepared to admit it was “good”. At trial, she minimized the impact of J.H. telling her that he was having his third child which is contrary to the reaction she had admitted to in her statement to SIU.
[165] She demonstrated a resistance to responding to or considering suggestions in proper questions from the defence and responded with a repeated answer of “my memory is my memory”.
[166] On at least on one occasion, she had to be directed by the court to answer a proper question put to her by defence.
[167] J.H.’s child was born in December 2003 and defence counsel suggested that their meeting at the Trowbridge Falls would likely have taken place between April 2003 and December 2003. Her response was “you can suggest whatever you want”, rather than genuinely answering whether the time frame was possible.
[168] At times, she was evasive when confronted with probing questioning to the point of almost being aggressive in her answers on cross-examination.
[169] The court acknowledges that victims of sexual abuse must relive their experiences in court and are subject to vigorous cross-examination and react differently to this experience.
[170] However, the reliability of M.E.’s evidence is diminished as it is shaped by her strong belief that J.H. crossed the professional line by befriending her when she was in a vulnerable state. Her anger for him crossing this professional line and her refusal to acknowledge at times any suggestions that might put J.H. in a favourable light suggest that she is looking at this past event through that lens.
[171] M.E. testified that she was angry with J.H. for befriending her as a police officer. This sentiment was expressed on more than one occasion. It was clearly a view that defined her responses to questions about the nature of their relationship and what happened between them.
[172] Her animus towards him is manifested by these answers: when to the SIU, she said he was a great guy but at trial she would not admit that he was. She stated, “my opinion has changed since I gave this statement 3 years ago”. There was apparent hostility in answering some questions from defence.
[173] Also, in her examination in chief, M.E.’s response to the question why she complained to authorities 18 years later, she answered that, after being triggered by her client’s story from her family, and the more distance from the incident with D.P. and J.H., she believed that the friendship with J.H. “should not have happened in the first place”. She indicated that, as a psychotherapist, she would lose her licence if she had this type of friendship. She then followed up that that this was another reason she came forward.
[174] As stated by Justice David Paciocco in “Doubt about doubt” Coping with R. v. W.(D.) and Credibility assessment 22 Canadian Criminal Law Review 31 at p. 17:
In deciding what “demeanour” inferences to draw, bear in mind that the term is broad, and not all demeanour evidence is equally dangerous. “Demeanour” encompasses things such as eye contact, posture and “body language,” or pausing before answering. These things can be dangerous to use in judging credibility. The term “demeanour” also embraces, however, demonstrated hostility before the court, or an abrupt change in attitude by the witness when one party is questioning them as opposed to the other, things that can more rationally assist in making credibility evaluations.
[175] In conclusion, her demonstrated hostility weakens the reliability of her evidence.
[176] I will now discuss the inconsistencies in the following order:
Inconsistencies between M.E.’s testimony at trial and statement to the SIU that I find are significant;
Inconsistencies between M.E.’s testimony at trial and her preliminary hearing evidence; and
Inconsistencies between M.E.’s testimony and her mother and M.A.’s testimony,
[177] While one or two of these inconsistencies on their own would not necessarily have adversely affected my assessment of the complainant’s credibility and reliability, it is the cumulative effect of these inconsistencies that causes me concern.
[178] These events occurred about two decades ago. M.E. was an adult then but was someone who had just been through a very violent ordeal with her stepfather.
[179] The Ontario Court of Appeal in R. v. Williams, 2018 ONCA 138, adopted the following statement from R. v. M.(A), 2014 ONCA 769, about inconsistencies, at para. 33:
… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.)(1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[180] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354.
[181] Firstly, M.E.’s testimony had the following prior inconsistent statements between her evidence at trial and statement to the SIU:
− Her complaint to the police was prompted by her client’s mother describing a traumatic experience with shooting. This prompted her to remember her own experience with her stepfather on April 26, 2001, and she then later had a nightmare. In the statement to SIU, she indicated it was a sexualized dream but then at trial she said it involved J.H. who was holding her down and directing someone to cutting her tongue;
− When she was told about the third pregnancy, she insisted that it was because she felt that they were friends and would be able to confide in each other so she was surprised. However, in her statement to SIU, she said “Whoa…..”, which suggests that perhaps their relationship was more than just a friendship.
[182] Secondly, the following are the prior inconsistent statements between her evidence at trial and her evidence at the preliminary hearing:
She indicated that she was at the foot of the bed looking away from the bed towards J.H.. He was facing her. He pushed her on the bed but she did not identify where he pushed her. However, at the trial she said that he pushed her shoulders, but at the preliminary inquiry she did not say shoulders; and
At the preliminary inquiry, she said it was a gentle push and not aggressive but would not admit to this at trial despite repeated questions.
[183] Also, the court notes that she revealed only for the first time in a meeting with the Crown on May 5, 2022 that J.H. moaned “oh M--” when he was on top of her. This was not disclosed to the SIU investigator or at the preliminary inquiry.
[184] Finally, her evidence is inconsistent with other Crown witnesses.
[185] I turn to her mother’s evidence, who testified that M.E. told her about the incident after it occurred.
[186] The mere repetition of a prior consistent statement does not mean that the complainant is more likely to be telling the truth.
[187] However, it does provide evidence of an external inconsistency to M.E.’s evidence of whether it occurred. Her mother said she was told by M.E. that it was on the couch whereas M.E. says the incident occurred in the bedroom and then on her bed. Although the location of the alleged sexual assault can be considered a minor detail (see R. v. A.V., 2020 ONCA 58), in this case, it is important as the location of the kissing/touching as suggested by the mother lines up with J.H.’s evidence.
[188] Also, M.E. told her mother that she pushed J.H. off. This is not consistent with her portrayal of the alleged sexual assault. This is not to say that a sexual assault must have confirmatory or corroborating evidence, but rather it again shows inconsistencies in M.E.’s description of the alleged sexual assault.
[189] The mother said this occurred after J.H.’s demonstration of self-defence moves whereas M.E. did not recall bringing him into the house after the self-defence demonstration.
[190] There were major differences between M.E. and her friend M.A.’s evidence regarding the attendance at the apartment by someone who M.E. alleges was J.H.. M.A.’s evidence differed from M.E. with respect to location of J.H. when she arrived at M.E.’s apartment and the description of J.H..
[191] Therefore, based on the above assessment of M.E.’s evidence, the court is left with a reasonable doubt about the reliability of her evidence that she did not consent to the sexual activity.
Was the consent vitiated?
Legal Principles
[192] A complainant’s subjective consent is of no legal effect if vitiated by common law or as per the Code.
[193] The court will consider whether consent has been vitiated as I have found that there is a reasonable doubt regarding whether subjective consent existed: see G.F., at paras. 4, 33, and 53.
[194] According to R. v. Snelgrove, 2018 NLCA 59, 366 C.C.C. (3d) 164, aff’d 2019 SCC 16, [2019] 2 S.C.R. 98, the Crown does not need to prove coercion or that the complainant was dependent on the accused or that the accused was in a dominant position at the time of the sexual assault.
[195] Paragraph 75 of Snelgrove states:
The Crown's second argument is that "although the trial judge does not state it explicitly in her decision", she was looking for an "explicit inducement" and failed to consider whether the totality of the evidence, including Mr. Snelgrove's evidence, was capable of demonstrating an inducement. The Crown argues that the trial judge erred by looking solely to the complainant's evidence for evidence of an inducement.
[196] At para. 76 of Snelgrove, the court stated that “inducement can be inferred from the circumstances of a case; or that the evidence does not need to come from the complainant. But there needs to be some evidence that the position was abused to induce the complainant to engage in the activity”: see also R. v. F.L., 2009 ONCA 813, 259 O.A.C. 128.
[197] The law does not require that she felt she could say no because he was a police officer. Rather, the court can infer from the circumstantial evidence that she did not say no due to their relationship of trust and he abused this confidence.
[198] At para. 19 of Snelgrove, the court refers to cases that it finds of limited assistance as the complainant’s circumstances were different. These include R. v. Alsadi, 2012 BCCA 183, 285 C.C.C. (3d) 316, where the complainant was a patient in a psychiatric hospital; R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161, where it was a fifteen-year-old complainant; and R. v. Makayak, 2004 NUCJ 5, where the complainant was a prisoner in a police detachment.
[199] In Lutoslawski, the court stated that the exploitation can be subtle and, at para. 12, referred to para. 69 of Makayak, which states:
Section 273.1(2)(c) broadened the scope of criminal conduct to include breach of trust and power. However, the section also added the words “induces the complainant ... by abusing a position of trust, power, or authority”. Does this mean there has to be some form of coercion? In my view, these words remove the need for coercion that may be present for section 265(3)(d). It is clear from Matheson that it is the exploitation of the imbalance that is the key consideration. Section 273.1(2)(c) was passed a number of years after the courts had struggled with section 265(3)(d). Parliament had the opportunity to consider the case law that had developed up to that point. The use of the word “induces” introduces a subtler form of pressure that can be inferred from the circumstances of the exercise of the power or authority.
“Induce” is defined in the Oxford English Dictionary as:
“1. To lead (a person), by persuasion or some influence or motive that acts upon the will to some action, condition, belief, etc.; to lead on, move, influence, prevail upon (any one) to do something.”
[200] The accused does not have to occupy a place of authority for the complainant to feel a sense of powerlessness. See R. v. Emerson, 2022 BCCA 5, 410 C.C.C. (3d) 105, where a youth pastor was abusing his power with someone from his parish. The pastor’s inducement was infused with spiritual justifications that she was a “touch person” and having sex with him would help her confront and deal with her personal issues. The complainant went along with his entreaties because she trusted him.
[201] In R. v. Belanger, 2021 ONSC 3288, the facts were that the camp counsellor engaged the complainant in conversations about sex and gave her advice about her boyfriend. The grooming behaviour led to sexual contact. This case involved a person of at least 16 years of age and over 18 years old.
[202] Whether the subjective consent was vitiated is a question of law: Code, s. 273.1(1.2).
Crown’s Position
[203] Alternatively, the Crown argues that if the court finds that M.E. did consent, this consent was vitiated by the operation of s. 273.1(2)(c).
[204] During the course of their relationship, his identity as a police officer was apparent in many of their contacts: e.g., he took her for a ride-along, he showed her his uniform when he had completed is emergency response team course, and he showed her self-defence manoeuvres. Also, his email address contained his badge number.
[205] J.H.’s career as an OPP officer was important in their relationship, as the relationship had undertones of him being with a police force. The Crown submits that they met when M.E. was in a relationship of trust and authority. This was presumed and does not require evidence. From the moment that they met in the hotel, when they met at the detachment, when he took her for drive from the hotel, when he gave her his business card and personal cell number, and when he met with her, he was in a position of authority. This was a trust that he encouraged from the start of the relationship. He knew about her, knew about her traumatic events and the details of the domestic violence from the interview, the hospital, and the taking of her KGB statement at the detachment. He knew about her vulnerability and cultivated her trust. This relationship of trust was subtler than a patient/doctor or student/teacher relationship.
[206] J.H., being a police officer, was an element of their relationship and he trusted her. He knew her whole story from taking her for a drive and allowing her to vent her feelings. It was an open invitation to connect with him and she took him up on this offer and preferred to speak to him rather than seek individual counselling. J.H. acknowledged that she was vulnerable during the ordeal.
[207] The court does not need direct evidence from the complainant to vitiate consent but rather can look at circumstantial evidence: see Snelgrove, at paras. 19, 27.
[208] The Crown submits that, at the time of the sexual assault, M.E. was in a very vulnerable position as she had just been through a traumatic event which involved being shot at by her mother’s partner. This would explain why she did not say no or ask J.H. to stop the sexual touching as she assumed he had a gun in his vehicle and she was afraid. According to the Crown, it was not surprising that she was terrified even though J.H.’s vehicle was parked a distance away from her home. It was reasonable for her to believe he had a gun in his vehicle as he had told her on a previous occasion that is why he locks his vehicle.
[209] Rather, she took a de-escalating approach and reminded him of his wife and children.
[210] The Crown submits that M.E. knew that on the occasion of the incident, J.H. had come with his vehicle and that he had a firearm in the vehicle.
[211] From the time of the sexual assault incident, she made sure that she was never alone with him.
[212] When J.H. asked M.E. to come to her apartment, she said “it was not an ask” and she felt that she had no opportunity to say no. He was in a position of power. It was not a relationship of equals. Yet, at the preliminary hearing, she did indicate that “I likely said OK”.
[213] M.E. also did not discuss her relationship with her friends or mother.
Defence’s Position
[214] The defence argues that the further along the kissing/touching occurred in time, the more that M.E. and J.H. were in a friendship.
[215] The timing of the alleged sexual assault is uncertain.
[216] This case can be distinguished from other cases dealing with abuse of authority as it is clear from the evidence that M.E. believed that J.H. was a close friend.
Analysis
[217] Did M.E. consent, permit, or participate in sexual activity because J.H., in his position as a police officer, abused his position of power or authority?
[218] The question of whether M.E.’s fear vitiated consent need not be reasonable or communicated to J.H. but only be the reason for the submission: see Ewanchuk, at paras. 39, 62. It is a subjective approach.
[219] Firstly, M.E. throughout her evidence, characterized J.H. as a friend. She testified that she “saw him as a friend”. She could be honest with him and she trusted him as a friend.
[220] Secondly, based on all of evidence and specifically on M.E.’s evidence, the court cannot ascertain the timing of the kissing/touching.
[221] The Crown suggests it was within one year of the domestic violence incident, which would mean that M.E. was still vulnerable and raw in her emotions from the traumatic event. The defence indicates that it could have been as far into 2003 or 2004 as the Crown expanded the timeline in the indictment. The longer the relationship went on, the more they were friends and the initial meeting and reason for him being involved with her as police officer was removed. The Crown requested the amendment during the trial because its own witness, M.E., could not remember whether the sexual assault took place before or after Trowbridge Falls, which she assumed occurred in 2003.
[222] Secondly, the court finds that M.E. did find comfort from her friendship with J.H.. As stated above, M.E., as a psychotherapist, takes great exception to him befriending her and crossing professional lines. J.H. does not believe he crossed a professional line. She was not a witness, complainant, or informant involved in an ongoing investigation. His counsel submits that there is no code of conduct that prohibits this type of relationship.
[223] Also, she was emphatic that the comment “whoa” made in the statement to the SIU was because she was surprised he was telling her about his third child only then. She denied suggestions by defence that she was upset because she cared for him intimately and wanted him to leave his wife. Rather she was emphatic that she was concerned that she thought he was a real friend and that he had failed to confide in her this important fact. She thought they were good friends and she had shared many confidences with him, but he was not reciprocating.
[224] After a period of time, the friendship grew. The relationship did not involve M.E. as a complainant, witness, or confidential informant so that the lines were blurred.
[225] In the context of this criminal case, the court’s role is to determine whether consent was vitiated by J.H. abusing his power, control, and authority as a police officer.
[226] I do not accept, based on the evidence, that her subjective consent was vitiated by his relationship with her and him being a police officer.
[227] In her initial evidence, she did not raise the fact that she feared him because he was a police officer. The Crown asked, “what impact did it have on you that he was a police officer”. She was excluded from the courtroom and the court did not permit her to answer the question. However, not too much later in her evidence she said she knew he had a gun in his car. A car that was parked far up the driveway and not accessible.
[228] I agree that the further into their relationship the kissing/touching occurred, the more they were into their friendship and moving away from any police/victim relationship.
[229] I do not accept that J.H. abused his position so that she was fearful of saying no or of rejecting his advances.
[230] I also do not find that a power imbalance arose solely as a result of their difference in ages.
[231] Defence distinguishes Snelgrove by submitting that it was a different scenario in questionable circumstances. In Snelgrove, the accused officer was in uniform, on duty with all gear, and assisting the complainant who was drunk. He took advantage of her.
[232] There is an issue as to whether he was on duty when he attended her home. There is no evidence that he was.
[233] There is no convincing evidence that she consented to sexual touching because he was a police officer and her relationship with him.
Conclusion
[234] While M.E.’s testimony is the only source of direct evidence as to her state of mind, credibility and reliability must be assessed by the court.
[235] It is possible that the complainant did not consent to the sexual conduct in question. It is also possible that the complainant consented in her mind to the sexual conduct that occurred approximately 18 to 21 years ago. It is also possible that in her mind in 2019, when she was told about her story related by the mother of a client, that was similar to her violent and traumatic experience with D.P. and then following her nightmare that night (which she recounted two different versions of to the SIU and at the preliminary inquiry), she believed she did not consent. She did not label it as sexual assault until 2019 when the SIU was completing its investigation.
[236] Based upon the complainant’s evidential frailties described in these reasons, I cannot be sure.
[237] In R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, the Supreme Court qualified the W.(D.) instruction with an additional prong that a court “may believe some, none, or all of the testimony of any witness, including that of an accused”: at para. 10. If the court is unable to decide whom to believe, the accused is entitled to an acquittal: at paras. 11-12.
[238] Therefore, having considered all the evidence, I am left with a reasonable doubt as to whether the complainant subjectively did not consent. Furthermore, I have reasonable doubt that the complainant’s consent was vitiated.
[239] Accordingly, the charge against J.H. is dismissed.
Justice A. Doyle
Released: August 25, 2022