COURT FILE NO.: CR-22-70000032-00MO
DATE: 20220818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RILEY TEBBS
N. Golwalla, for the Crown
J. Zita, for Mr. Tebbs
HEARD: 28 June 2022
S.A.Q. AKHTAR J.
On application for an order of certiorari from the committal order made on 21 December 2021 by Justice R. Blouin of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant, Riley Tebbs, stands charged with sexual assault, contrary to s. 271 of the Criminal Code; aggravated assault, contrary to s. 268 of the Code; two counts of overcoming resistance (choking), contrary to s. 246(a) of the Code; and robbery, contrary to s. 343 of the Code.
[2] The applicant was committed for trial on all counts after a preliminary inquiry held on 27-28 September and 10 November 2021 where the applicant contested committal only on the charges of sexual assault and aggravated assault.
[3] The applicant now seeks an order of certiorari quashing those counts.
Background Facts
[4] At the time of the allegations, the complainant, C, worked in the sex trade. The appellant contacted her through text messages and they arranged to meet so that C could provide paid sexual services.
[5] Approximately two days later, on 30 December 2016, the applicant attended the Chelsea Hotel where C had rented a room. When making the arrangement, the applicant specifically requested that he be the last appointment of the night.
[6] The applicant arrived at around 11 p.m. He appeared friendly and told C that he had researched her on various review forums. The pair engaged in consensual sex for approximately 40-45 minutes, after which the applicant took a shower that lasted between 2-5 minutes. In the meantime, C dressed and lay on the bed waiting for the applicant so that she could get paid.
[7] When the applicant had finished, he emerged from the washroom and began to gather his clothes as if to leave. C reminded him that he had still not paid her. In response, the applicant invited C to approach him and stand in front of a mirror.
[8] The applicant stood behind C and told her she was “cute”. He then placed his arm round C’s neck and began choking her causing her to black out. When she regained consciousness, C found her wrists and forearms tied by three plastic cable ties. Duct tape had been wrapped round her mouth.
[9] C began to struggle and managed, repeatedly, to pull the duct tape from her mouth only to find the applicant would replace it. He continued to choke C causing her to defecate into the shorts she was wearing. The applicant told her that he was not trying to kill her but wanted her to “pass back out”. C ended up doing so as the applicant continued his choke hold and, at one point, head butted her.
[10] When C regained consciousness for a second time, she found herself laying on the floor with the applicant standing over her. He demanded to know where she had stored her cash. The complainant responded by telling him that she put it away in her car and offered to take him to it.
[11] The applicant also ordered C to erase his phone number from her phone, cutting the cable ties restraining her so she could do so. C, however, was confused and was unable to comply. The applicant did not return the phone.
[12] C testified that the applicant became remorseful and told her that his actions were the result of his need for money. Just before he left the room, he told C to remain on the floor for five minutes after he had gone. She agreed that she would but as soon as the applicant left, C locked the door and rang the front desk to report what had happened.
WAS THERE SUFFICIENT EVIDENCE OF AGGRAVATED ASSAULT TO JUSTIFY COMMITTAL?
[13] In order to constitute an aggravated assault, the assault must be one that wounds, maims or endangers life.
[14] At the preliminary inquiry, the Crown advanced the position that the applicant’s actions when choking C endangered her life. The preliminary inquiry judge committed on this basis.
[15] The charge of aggravated assault depends on its consequences and not by the intent of the accused or the method of assault: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 45-47.
[16] Both parties agree that the fact that the assault could have endangered life is insufficient in establishing the offence. However, they part ways on the actual definition of the term “endangers life”.
[17] Ms. Zita, on behalf of the applicant, argues the assault must result in life threatening injuries, the absence of which leads to no evidence of the actus reus of the offence. Mr. Golwalla, for the Crown, on the other hand, contends no such requirement exists. He says the offence does not even require a victim to suffer any physical bodily harm.
[18] The authorities appear to favour the Crown’s position.
[19] In Williams, at para. 43, the Supreme Court of Canada described “endanger” as to “put in danger”, “put in peril” and “incur the risk”. This definition was referred to in R. v. F.S. (2006), 262 C.C.C. (3d) 472 (Ont. C.A.), at para. 27, where the court observed that the “authorities also establish that it is not necessary that the assault said to have endangered the complainant's life caused her bodily harm”.
[20] The court in F.S., also cited, with approval, the comments made in R. v. De Freitas, (1999), 132 C.C.C. (3d) 333 (Man. C.A.), at paras. 12-13:
The use of a weapon in an assault will almost always create a risk of the victim being wounded, maimed or disfigured or his or her life endangered. Yet the legislation does not place an assault with a weapon in the category of aggravated assault. For this to happen, the risk must become reality. The victim must actually be wounded, maimed or disfigured or his or her life endangered. “Endangers the life of the complainant” is thus, in my view, intended to be as much a consequence of the assault as “wounds, maims or disfigures.”
I do, however, agree with Moldaver J. (as he then was) in R. v. Melaragni (1992), 75 C.C.C. (3d) 546 (Ont. Ct. (Gen. Div.)), when he held that bodily harm was not a necessary prerequisite of endangerment to life. He gave the following examples of assaults which endanger life without causing actual bodily harm (at p. 550):
For example, if D. and V. are standing on a 20th-floor balcony and D. pushes V., causing V. to go over the railing, but V. miraculously holds on and is rescued before falling, can it be doubted that D.’s common assault endangered the life of V.? In this example, D. has assaulted V. and the assault has endangered V.’s life even though V. suffered no bodily injury. The same could be said if D. pushed V. into a busy intersection in the face of oncoming vehicular traffic. Assuming that an alert motorist was able to avoid striking V., can it be doubted that V.’s life was endangered?
[21] I agree with Mr. Golwalla’s position that strangulation or choking has been found to be an act that endangers life and the loss of consciousness is a significant factor in the analysis: R. v. Ramcharan, 2013 MBCA 89, at para. 12; R. v. Giwa, 2019 QCCQ 633, at para 43.
[22] With respect, the cases put forward on behalf of the defence do not assist them in this case. R. v. Duke, [2019] O.J. No. 6868 (S.C.), and R. v. J.A., 2008 ONCJ 195, both involved acquittals after the court found that the Crown had failed to ultimately prove, at trial, that the act of causing unconsciousness by choking endangered life.
[23] These decisions were those made by the trial triers of fact where a different test applied: proof beyond a reasonable doubt. Here, at the preliminary inquiry stage, all the Crown need show is some evidence of the essential elements of the offence.
[24] In this case, the preliminary inquiry judge could clearly draw an inference that by choking C into unconsciousness the applicant endangered her life. The judge correctly referred to the decision of R. v. Lemmon, 2012 ABCA 103, 285 C.C.C. (3d) 419, where the court, at para. 28, stated that:
Rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences. The difference in the outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure. In the final analysis, this is an act of cruel domination met by sheer horror and often accompanied by serious physical and psychological harm. [Citations omitted.]
[25] Moreover, F.S., was a case of sexual assault on a complainant by her father who was suspected of being infected with HIV. The court held that committal on aggravated sexual assault was justified because when the accused exposed his daughter to the risk of contracting HIV, he had endangered her life. The court spoke of the limits of assessing the risk factor at the preliminary inquiry stage at para. 55:
Because of the absence of expert evidence I have considerable difficulty in quantifying that risk. However, the level of risk is an issue to be resolved at trial. Issues of reasonable doubt do not arise at this stage. Similarly, where there are competing inferences, only the inferences favourable to the Crown are to be considered. See R. v. Sazant (2005), 2004 SCC 77, 193 C.C.C. (3d) 446 (S.C.C.) at para. 18. There is at least some evidence upon which an opinion could be formed that the appellant risked infecting the complainant with HIV. That evidence satisfied the endangerment element of the actus reus as explained in Cuerrier, supra, at para. 95.
[26] See also: R. v. St. Martin, 2016 ONCA 482, at para. 2.
[27] For these reasons, I find no jurisdictional error in the preliminary inquiry judge’s conclusion and the application for certiorari with respect to the aggravated assault count is dismissed.
WAS THERE SUFFICIENT EVIDENCE OF SEXUAL ASSAULT TO JUSTIFY COMMITTAL?
[28] At the preliminary inquiry, the Crown argued that even though C had consented to the sexual activity that took place her consent was vitiated by fraud under s. 265(3) of the Criminal Code.
[29] The Crown’s position was that although the accused had arranged the meeting with C under the pretext of paid sex, the real purpose was to rob her. Given his dishonesty and ulterior motives in arranging the meeting, C’s consent was vitiated.
[30] The preliminary inquiry judge acceded to that submission by deciding:
In my view here, a reasonable trier of fact could conclude on these facts that the dishonest act was not just an intention to have sex without paying, that would not be enough. Here, Mr. Tebbs asked for the last appointment of the evening. He brought duct tape with him. He brought hand restraints with him. That trier of fact could conclude that the dishonest act included an intention to assault and rob the complainant, which caused serious bodily harm. Although there are other interpretations available, a trier of fact could conclude that consent was vitiated by fraud and that the dishonest act resulted in more than financial deprivation or mere sadness or stress from being lied to.
[31] In coming to this conclusion the preliminary inquiry judge relied upon the Supreme Court of Canada’s decision in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346. There, the Supreme Court of Canada held that even though the complainant consented to sex with the accused on the condition that he wear a condom, the fact that the accused had pricked holes in them vitiated consent.
[32] Ms. Zita submits that the judge’s erroneous interpretation of the law led to jurisdictional error. She correctly points out that legal errors and jurisdictional errors are not mutually exclusive: if the preliminary inquiry judge misinterprets the law and finds evidence to commit on an essential element of the offence - based on that error - even though no such evidence exists, the error is jurisdictional: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 22-23.
[33] Mr. Golwalla, on the other hand, submits there is some evidence that the applicant had intended to attack and rob the complainant from the outset, pointing to the fact that the applicant had brought duct tape and tags to the hotel and ensured he was C’s last appointment that day when she would have had accumulated monies from other clients. He had also conducted research on C prior to their meeting leading to the inference that he was looking for someone of her size and appearance when deciding if she was an appropriate victim.
[34] I agree with Mr. Golwalla’s submission that there is clearly some evidence of a pre-planned robbery. However, the question before this court is whether that would be sufficient to vitiate, by fraud, the complainant’s consent to the sex that took place prior to the robbery.
[35] In R. v. Cuerrier, [1998] 2 S.C.R. 371, the Supreme Court of Canada found that failing to declare one’s HIV positive status constituted fraud that vitiated consent in sexual assault cases. Importantly, the court found that the existence of fraud should not vitiate consent unless there was a significant risk of serious harm. In other words, lies about wealth, age, marital status, and payment could not be a basis for a sexual assault conviction.
[36] In this respect there is no dispute: both parties agree that the accused’s deception regarding payment for sexual services could not, under Currier or Hutchinson, amount to fraud vitiating consent.
[37] The law also seems to be clear that consent must be linked to the sexual activity itself.
[38] In Hutchinson, at para. 17, the Supreme Court of Canada remarked that consent “cannot be implied, must coincide with the sexual activity, and may be withdrawn at any time” (emphasis added). See also: R. v. A.E., 2022 SCC 4, at para. 1, where the Court stated that consent “must be linked to the sexual activity in question, it must exist at the time the activity occurs, and it can be withdrawn at any time”.
[39] In R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 104, the Court explained:
To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant's consent to sexual intercourse was vitiated by the accused's fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. [Underlining added; italics in original.]
[40] It follows, therefore, that the fraud and the risk of serious harm have to be linked to the sexual activity itself and not a broader overarching deception of which the sexual activity forms a subset.
[41] I find the preliminary inquiry judge’s linking of fraud to the robbery and violence which occurred subsequent to the consensual sexual activity went beyond the parameters set out in Cuerrier, Mabior, and Hutchinson. The violence that took place after the sex, which reflected the pre-planned robbery could not affect the nature of the consensual sexual activity to which the serious harm must apply.
[42] By committing this legal error, the preliminary inquiry judge also committed jurisdictional error by finding evidence of non-consent when there was no such evidence.
[43] Mr. Golwalla suggests that the entire incident should be characterised as a single interaction between the complainant and the applicant which was sexual in nature. Viewed in this way, a trier of fact could reasonably find that C’s consent to sex was provided only because of the applicant’s dishonesty. His fraud vitiated her consent.
[44] As I have already indicated the law requires consent to the sexual activity in question.
[45] It is clear there were two distinct acts in this case. The first was the consensual sexual activity, the second was the robbery and aggravated assault.
[46] The lack of consent to being robbed and strangled does not amount to fraud vitiating the initial consensual sexual act. Nor does the fact that C would not have consented to sex if she knew that afterwards she would be the victim of robbery. If this was the law, it would amount to a significant expansion of the definition of sexual assault not contemplated in Hutchinson and Cuerrier.
[47] The fact that the Crown could “argue”, at trial, that was a single act does not turn it into one for legal purposes or provide evidence that it was one. There has to be some evidence of the offence.
[48] Nor do the cases cited by Mr. Golwalla assist the Crown in this matter.
[49] In R. v. Eze, 2022 ONSC 277, the trial judge found two sexual assaults separated by a short interval to constitute one transaction. Unlike this case, the judge found both incidents to be sexual assaults. Moreover, the purpose of determining whether the two incidents constituted a single transaction was to determine whether, in lieu of a cross-count similar fact application, the Crown could rely on evidence of one sexual assault in proving the other. Again, that is not this case.
[50] Contrary to Mr. Gollwalla’s submissions, I do not agree that R. v. Edgar, 2016 ONCA 120, has any application on these facts. Edgar involved an offender who forced his way into the victim’s apartment by placing a chokehold around her neck and telling her about a police chase and drugs. After making several telephone calls, he told the complainant that she had to watch him masturbate and made her sit on a couch whilst he did so. The complainant was terrified and thought she might be raped or killed. However, the offender did not touch her in any way. The complainant fled and fell over her balcony falling 12 feet to the ground and breaking her ankles.
[51] The issue on appeal was whether the forced viewing of the offender masturbating constituted a threat of sexual assault even though the offender had not physically touched the victim. The Court of Appeal found that it did as it intentionally created an apprehension of imminent harm or contact that “affronts the person’s sexual integrity”.
[52] Again, these facts have no application in this case where the sexual activity was consensual but the violence relating to the robbery that followed was not.
[53] Nor do I agree with Mr. Golwalla’s interpretation of para. 69 of Hutchinson. There, the Court expressed its view that Cuerrier “did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s. 265(3)(c)”. The Crown argues that in this passage the Court was indicating that fraud vitiating consent was not confined to specific sexual acts.
[54] However, para. 69 must be read in its entirety:
Mr. Hutchinson argues that the universal threshold for deprivation under s. 265(3)(c) post-Cuerrier is a "significant risk of serious bodily harm", and that the Crown did not establish that here. The Crown argues that a new trial is required to determine whether the risk of pregnancy caused by the sabotaged condoms constituted a "significant risk of serious bodily harm". These arguments over-read Cuerrier. The Court in Cuerrier was addressing the specific risk of sexually transmitted diseases. It did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s. 265(3)(c)
[55] The Court was not expanding the use of fraud in the way that the Crown suggests but simply respond to the appellant ‘s argument that Cuerrier established a threshold of serious bodily harm which excluded pregnancies.
[56] The Crown position would lead to an expansion of sexual assault that, in my view, was not contemplated by Hutchinson and Cuerrier. Nor is there a policy reason to find a vitiation of consent in such circumstances: the violence that followed the sexual activity is fully captured in the robbery and aggravated assault charges on the indictment.
[57] Finally, Mr. Golwalla presents an argument not advanced in front of the preliminary inquiry judge: there was evidence that the act of touching in front of the mirror was sexual in nature, taking into account that the touching occurred as the applicant called the complainant “cute”, that she was only partially clothed, and he had just emerged from the shower and shortly after they had sex. Mr. Golwalla argues that C’s consent to this touching was vitiated by fraud as his true intention was to assault and rob her.
[58] It is somewhat surprising that Mr. Golwalla makes this argument as the Crown at the preliminary inquiry did not refer to this as a basis for committal. Nor was there any suggestion in the evidence that the applicant’s actions were designed to affront the complainant’s sexual integrity. There is no evidence that these actions were of a sexualised nature. The inference to be drawn is that they were designed to lull the complainant into a sense of security so that the applicant could choke her with minimal resistance and carry out his plan to rob her.
[59] For these reasons, I find the preliminary inquiry judge to have committed jurisdictional error by finding evidence of a sexual assault without any evidence to do so.
[60] In conclusion, I would grant certiorari and quash the sexual assault count but dismiss the application with respect to the count of aggravated assault and order the applicant to stand trial on that charge along with the remaining charges committed for trial by the preliminary inquiry judge.
S.A.Q. Akhtar J.
Released: 18 August 2022
COURT FILE NO.: CR-22-70000032-00MO
DATE: 20220818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RILEY TEBBS
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.