ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. CR-15526-21

DATE: 20220524

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.J.A.

D. Slessor, for the Crown

S. Fraser, for the Defendant

HEARD: March 21, 22, and 23, 2022

Madam Justice S.J. Woodley

reasons for decision

WARNING

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO ANY ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION AND CONTAINS NO INFORMATION IDENTIFYING THE COMPLAINANT IN THIS PROCEEDING.

INTRODUCTION

1The Crown alleges that on August 13, 2020, during a sexual encounter arranged through the dating application Tinder, the accused WJA engaged in certain sexual acts that exceeded AN’s consent, and in so doing committed sexual assault. The Crown further alleges that the circumstances do not permit WJA to rely upon the defence of honest but mistaken belief in communicated consent.

2The accused, WJA, admits that he and the complainant AN engaged in a sexual encounter but maintains that all aspects of the sexual encounter were consensual and if any sexual acts exceeded the boundaries of AN’s consent, he was under an honest but mistaken belief that AN communicated consent to those acts.

FACTUAL BACKGROUND

The Evidence of the Complainant AN

3AN is the complainant and the sole Crown witness in this case.

4AN testified that on August 13, 2020, when she was 36 years old, that WJA exceeded the boundaries of her consent during an otherwise consensual sexual encounter.

5AN met WJA on the dating application Tinder. They “swiped right” for each other and were matched. Following the match, AN and WJA exchanged telephone numbers and began texting each other.

6On August 13, 2020, a day or two after they matched, AN texted WJA to ask what he was doing. As WJA was driving, he telephoned AN and they spoke for about seven minutes. As a result of their conversation, AN and WJA agreed to meet at AN’s apartment to engage in sexual activity.

7AN directed WJA to park at the bar across from her apartment and she would meet him outside. WJA arrived about 10 pm. AN recognized WJA from his Tinder photographs which contained both head and body photos.

8AN walked with WJA to her apartment. While walking, WJA advised AN of his real name as opposed to his username on Tinder. WJA also advised AN that he did not have any STDs and had undergone a vasectomy.

9Upon reaching the apartment, the parties entered and removed their shoes. AN described her bachelor apartment as being approximately 350 - 400 square feet with a bathroom off the entry, a desk to the left, a queen size bed without box spring in the middle, and a kitchen to the right. The light was on, and the room remained well lit throughout the encounter.

10AN said that there was no small talk upon entering the apartment. WJA introduced himself to AN’s dog, who weighed about 70 pounds and resembled a dingo. They walked to AN’s bed and WJA asked if he could take off AN’s clothes. AN agreed.

11WJA removed AN’s clothes and pushed her onto the bed so that she was laying on her back. WJA removed his shirt, knelt on the floor, and began performing oral sex on AN. AN acknowledged that she consented to and enjoyed this sexual act.

12After a few minutes, AN testified that WJA bit her inner thighs. AN testified that “it was pretty excruciating”. She didn’t say anything to WJA after the bite but said that she pulled her leg away “slightly”.

13AN said WJA then dragged his teeth along her inner thigh and bit her other thigh, less hard, but still hard. She directed WJA’s head to stop, and he did.

14AN said they both stood up and then WJA slapped her across her face two to three times with an open hand. She testified that she was “very taken aback” and was “very much in shock”. AN did not however say anything or show any reaction in response to the slaps.

15WJA then directed AN to get on her stomach on the bed. AN complied. AN testified that she “just wanted it to be over” and “didn’t say anything”. AN explained that as a child she experienced “a lot of trauma” and learned if you said anything the situation only got worse. AN said that she stayed silent and pretended to enjoy the sexual relations.

16AN testified that WJA penetrated her vaginally from behind and put his fingers near her anus and asked if he could “put it in her butt”. AN responded “No” and WJA did not pursue anal intercourse.

17AN testified that at some point she was on her back and WJA spit in her face a few times. AN said that this made her feel like she was nothing, just a vessel. She said she did not want that to happen.

18AN said that at some point she remembers WJA biting her back but nothing like the thigh bites. She didn’t complain or say anything as she “just wanted it to be over” and hoped he would finish so she could tell him to leave.

19AN stated that after WJA ejaculated they stood up. AN donned a minimal amount of clothes and gestured for WJA to leave. WJA said, “Wish me luck” and left her apartment.

20AN stated that her expectation was that she and WJA would have intercourse. She had no expectation that there would be biting, slapping, or spitting.

21AN added that WJA also “choked her”. She said that she had got herself into this situation and thought she deserved it. She didn’t know how to react.

22AN testified that when WJA left, she had a shower and started crying to the point of throwing up. She said that she was in a state of shock and couldn’t control herself. AN called her “sponsor” who didn’t answer. She then called her best friend but didn’t tell her about the encounter for a few days.

23When she did tell her best friend what happened, her friend took her to the sex assault clinic.

24AN testified that while no photos were taken by the clinic that she took some photos of the bruising on her inner thighs caused by the two bites.

25Two photographs were entered into evidence depicting bruising on her inner left and inner right thighs. The photos depict two oval bruises the size of a mouth that resembled a bite mark taken two days after the bites. The right bruise was darker than the left and no skin was broken by either bite.

26During cross-examination AN provided the following further testimony:

i. she understood they were meeting to have casual sex which was discussed during their phone call prior to WJA attending her apartment;

ii. during the walk to her apartment WJA spoke to her about STDs and they both advised that they were STD free. WJA also advised that he had a vasectomy;

iii. it is possible that they spoke about condom use, she doesn’t remember;

iv. while she told the police that WJA “ripped off her clothes” this was because she was upset. He didn’t rip her clothes off he aggressively removed her clothes;

v. shortly after WJA began oral sex he asked if she had any sex toys and she directed him to her nightstand where he found her “flogger” which is a sex toy with a handle and leather toggles attached to the end;

vi. AN never mentioned the presence of sex toys or the “flogger” to the police or the Crown as it was “not that important to her, they didn’t use the toys, it was irrelevant”;

vii. AN denied that WJA held up the flogger and/or asked if he could hit her;

viii. AN did not speak or make any sound after either bite and agreed she could speak but did not. She said she “grew up in an abusive home and when you verbalize pain or when things are going bad – it would get worse”;

ix. AN said that the slaps were not gentle and made a sound but did not leave a mark;

x. AN stated that WJA asked to video her, and she said “No” and WJA asked if he could video without her face or tattoos in the frame and she said “No” and WJA did not video her;

xi. AN agreed that WJA asked if he could call her names. She said “yes” because she was “agreeing to agree”. AN agreed that she never mentioned this prior to cross-examination;

xii. WJA asked if he could call her fat and she said “sure” again “agreeing to agree to get it over with”;

xiii. AN did not remember if WJA asked her if she liked to be degraded and doesn’t believe that happened;

xiv: AN did not complain to the police about the lack of use of a condom and said she felt she had other concerns and agreed that at no time did she ask WJA to use a condom;

xv. AN testified that during intercourse WJA pulled her hair and asked her “does this hurt” and she didn’t answer and so he pulled a bit harder and continued to ask her if it hurt and when she said “yes”, WJA eased the pull;

xvi. AN disagreed that when WJA “choked” her that the pressure was only slight on the sides of her neck and denied that he released the pressure when she turned her head to the left. AN said that WJA kept his grip and only released his grip because “maybe he got bored”;

xvii. AN denied that WJA asked her to ride him and was “sure” she never got on top of WJA during intercourse;

xviii. AN denied that WJA asked her to perform oral sex on him and denied that she performed oral sex on WJA;

xix. AN did not remember if WJA asked if he could ejaculate inside of her and didn’t believe it happened;

xx. AN denied giving WJA a warm wet washcloth to wipe himself and said she retrieved a cloth from the laundry hamper present in the room;

xxi. AN agreed that WJA made a joke before he left saying he “would ask her if she had an orgasm but if a guy has to ask, he already knows the answer”; and

xxii. AN agreed that during her interaction with WJA that she wanted him to think she was agreeable to certain sexual acts when she wasn’t, to speed up the process and get him out of her apartment. She “played along” in the hope that she would not anger or potentially anger him “because of past experiences she felt objecting to something can be counterproductive” and in re-examination stated that what she meant by this was that she complied with his “orders”.

The Evidence of the Accused WJA

27WJA testified that he was 31 years old on August 13, 2020, being the date of his sexual encounter with AN. WJA met AN on Tinder, they matched and began texting. On August 13, 2020, they texted in the morning and continued texting throughout the day until they met up.

28WJA testified that AN texted him to suggest they meet in person. He telephoned her as he was driving. He was delivering a lawn mower that he had sold and AN suggested that he come over. WJA advised AN that he hadn’t showered and made a joke about his privates being “sweaty”. WJA said that AN laughed and said that was not a problem. AN told him to come to her place. They agreed that they were meeting to engage in casual sex.

29AN directed WJA where to park and she would meet him outside. WJA parked and saw AN approaching. They introduced themselves and starting walking to her apartment. WJA advised AN of his real name and that he didn’t have any STDs. He said he raised this issue for his own health. AN confirmed that she also had no STDs.

30WJA also advised that he had undergone a vasectomy. He told her this as it affects both of their personal health.

31WJA testified that he advised AN that he didn’t have a condom on him, and AN said that was okay.

32When they arrived at AN’s apartment WJA introduced himself to her dog and did a casual look in AN’s bathroom to ensure no one intended to do him harm.

33WJA fully described the apartment layout from memory and noted that the room remained brightly lit throughout.

34While they were standing by the door, WJA asked if he could take her clothes off and she said “Yes”. WJA removed AN’s clothes and guided her towards her bed with his hands on her shoulders.

35WJA gave AN a push onto the bed and AN sat down and then laid back and made her way back onto the bed.

36WJA took off his shirt, got onto his knees onto her hardwood floor and began performing oral sex on AN. WJA said that AN was very accommodating and moved her legs apart so he could fit comfortably.

37WJA performed oral sex for a minute or two and asked AN if she had any sex toys. AN told WJA that her sex toys were in the nightstand and pointed. WJA looked in the drawer and found a small vibrator and a flogger.

38WJA retrieved the flogger and noted that it had a 4 – 5 inch handle with 7 – 8 inches of leather toggles. He advised that he owns the same flogger in a different colour.

39WJA testified that he held up the flogger and asked, “Can I hit you”. AN said “Yes”.

40As AN was on her back and the flogger is intended for spanking, WJA did not use the flogger but instead resumed performing oral sex on AN. While performing oral sex, WJA said that bit AN’s inner thigh by way of an “exploratory bite”. WJA said that AN appeared to be enjoying the oral sex and did not react to the bite. She made no move or sound and laid in the same position as when he was performing oral sex. WJA resumed performing oral sex for a few more minutes and then bit AN’s other thigh, a bit harder. WJA said that AN again did not respond and did not change her position. WJA specifically denied that AN moved or attempted to push him away. WJA then resumed performing oral sex for a bit longer but as his knees were getting sore from kneeling on a hardwood floor he stood up and AN got up and stood next to him.

41WJA testified that he “slapped her face” twice gently. WJA stated that he didn’t pull his hand more than an inch away, the slap was a gentle tap, and AN did not react at all. She continued to express the same demeanour that she had throughout their whole interaction to that time, which he understood she was enjoying their sexual encounter.

42WJA testified that he started taking his pants off and asked AN to lay on the bed. While removing his pants he felt his phone in his pants pocket and thought to ask AN if he could take photos of her. AN said “No”. WJA then asked if it would be okay if he took photos without her face or tattoos. AN said “No” and so WJA left his phone in his pocket and did not take any photos or video.

43WJA got into the bed with AN and they began having intercourse in the missionary position. WJA said AN was accommodating, spread her legs, and was ready for sex. They had sex in this position for a moment and WJA attempted to lift AN’s legs for comfort reasons. While WJA was adjusting AN’s legs he said that everything seemed normal and AN was assisting with moving and adjusting.

44WJA then grasped AN’s hair and started pulling, gently at first. WJA asked AN if he was being too rough and AN replied “No”. WJA thought that AN was enjoying herself.

45WJA released AN’s hair and with his left hand supporting himself he put his right hand on AN’s throat. WJA explained, that his intent was to slow blood flow for sensory enjoyment without obstructing air flow. WJA said that he gently applied pressure and in response AN turned her head. In response, WJA removed his hand at that point and denied that AN had any difficulty breathing. WJA repeated that he provided only a gentle squeeze to invoke sensory enhancement. After removing his hand WJA and AN readjusted their position and continued to engage in sexual relations.

46At this point, WJA asked and AN answered the following questions:

i. Could call her names? AN replied “Yes”;

ii. Do you like to be degraded? AN replied “Yes”; and

iii. Could he call her fat? AN replied “Yes”.

47WJA and AN stood up and WJA asked AN if she would perform oral sex on him. AN agreed and proceeded to perform oral sex while kneeling on the bed. WJA remained standing up on the floor. WJA then asked AN to turn around and positioned himself. WJA then asked if AN was into anal and AN said “No”. WJA said that he did not attempt to penetrate AN’s anal region with fingers or anything else.

48WJA and AN had sex in this position for a moment or two and WJA asked if AN would ride him. AN said “Yes” and she moved to the side so that WJA could lay down. AN mounted WJA and they had sex in this position until WJA was ready to climax. WJA asked if he could ejaculate inside of AN and she said “Yes”.

49WJA said that following ejaculation they lay in that position for a moment until AN got off him and the bed. WJA asked if AN had a towel or a t-shirt to clean up. AN did not respond verbally but went to the bathroom and returned with a warm wet face cloth for him. WJA cleaned himself and asked where AN would like the cloth. AN retrieved the cloth from his hand. They dressed and WJA joked to AN “If you have to ask a woman if she had an orgasm, she didn’t have an orgasm”. WJA said that he didn’t think AN had an orgasm as he didn’t see any excitement that would come with an orgasm.

50When WJA was finished dressing, he walked to the door, used his body to block the dog so it couldn’t get out, said goodbye to the dog, unlocked the door and said to AN, “Have a good night”.

51WJA drove home and later texted AN that he got home safe and hoped that she had fun.

52He estimated that he spent 30 minutes in AN’s apartment.

53During cross-examination WJA gave the following relevant evidence:

i. they specifically discussed condom use in the hallway before he entered the apartment. He advised AN that he did not have a condom with him and she told him that it was “Okay” that they didn’t need one;

ii. from the moment he arrived, AN’s answers were one-word answers. He believed AN was enjoying herself even though she did not direct him to do anything she was responsive to his questions and requests;

iii. when they were engaging in sexual relations she spread her legs for him, answered his questions and was accommodating. He believed that she was enjoying herself;

iv. after he retrieved her flogger they had a discussion about it and he understood that she was open to kinkier things and they were moving a bit faster. He believed that biting was something she was into and did an exploratory bite to increase her sensory enjoyment. When she did not object and seemed to be enjoying the oral sex that followed the bite, he understood that she was “okay and consenting”;

v. he doesn’t remember biting her on the back or her shoulder area, it is possible, but he has no recollection of it;

vi. the “slap” was really a touch with his hand an inch or less away from AN’s face – he used the word slap for want of a better word and believed that AN was enjoying herself and had indicated to him that she was okay with being hit. His exact words were “Can I hit you?” and AN said “Yes” and this question was not restricted to the flogger;

vii. he asked her if he was being too rough, if he could call her names and if she would like to be degraded as he was trying to keep open communication;

viii. he doesn’t remember spitting on her and does not believe that it happened;

ix. he asked questions to keep the communication open and complied with her instruction whenever she said “No”;

x. he believed that AN had a good time; and

xi. when he left, he said, “Have a good night. I hope that you had fun”.

POSITIONS OF THE CROWN AND DEFENCE

54The Crown claims that the internal integrity and consistency of the evidence presented, including the accused’s own testimony, satisfies the burden of proof beyond a reasonable doubt that the accused is guilty of the offence as charged. The Crown further claims that the defence of honest but mistaken belief in communicated consent does not apply to this situation as the accused did not seek, and the complainant did not communicate, consent to the bites, the slap, or the choking.

55The defence asserts that the onus lies solely on the Crown to prove the accused’s guilt beyond a reasonable doubt on the entirety of the evidence admitted and in the present case the Crown has not met the burden. Alternatively, the defence asserts that based on the totality of the evidence, if it is found that the complainant did not consent to the sexual acts, there are reasonable grounds for the defence of honest but mistaken belief in communicated consent to be made out on the facts of this case.

ANALYSIS AND THE LAW

Reasonable doubt and burden of proof

56The accused is presumed innocent of all charges and is not guilty of any offence unless the Crown proved beyond a reasonable doubt that the offence occurred.

57It is the Crown that bears the burden of proving guilt beyond a reasonable doubt, not the accused who must prove his innocence. Justice Cory expressed and detailed this principle’s importance in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 at paras. 27 and 39:

the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence.… If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law.

A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

58It is not enough for me to believe that the accused is probably or likely guilty of the offences to which he stands charged. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Having said this, it is impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

Assessment of evidence

59When reviewing and assessing it, all the evidence should be considered together rather than considering individual items in isolation. In other words, the standard of reasonable doubt is not applied to individual pieces of evidence but is applied to the evidence as a whole to determine if guilt is established by the prosecution beyond a reasonable doubt. This is particularly true where the principal issue is a witness’ credibility and reliability: see R. v. Gostick, 1999 3125 (ON CA), [1999] O.J. No. 2357 (Ont. C.A.) at paras 14-8; and, R. v. B. (R.W.), [1993] B.C.J. No. 758 (B.C. C.A.) at para. 28.

60Credibility is a witness’s willingness to tell the truth. Reliability is the accuracy of their testimony. Accuracy is affected by the witness’s ability to accurately observe, recall, and recount events: R. v. G. (E.), 2016 ONSC 4884, [2016] O.J. No. 4205 at para. 16.

61A witness whose evidence is not credible cannot give reliable evidence. A credible and honest witness, however, may still be unreliable: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) at para. 33. The reliability of the evidence is what is paramount: R. v. Norman, 1993 3387 (ON CA), [1993] O.J. No. 2802 (Ont. C.A.) at para. 47.

62WJA testified that all the sexual activity was consensual. If I believe that evidence, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by the accused’s evidence, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of WJA. If I cannot decide whether to believe WJA or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit. A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt.; R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21:

The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.

(Also see R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 (S.C.C.), at paras. 9-13)

ISSUES

63In this case, there is no dispute that there was sexual activity between the complainant and the accused. In order for an accused to be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that the sexual activity took place without the complainant’s consent and that the accused did so with 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 711 (SCC), [1999] 1 S.C.R. 330, at para. 42.

64The first part of the equation is the actus reus of the offence while the second part of the equation is the mens rea of the offence. The Crown must prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea; R. v. Barton, 2019 SCC 33, 86 at para. 87. This case thus raises two issues:

1. Has the Crown proven beyond a reasonable doubt that the complainant did not consent to the sexual activity? And,

2. If the answer to issue 1 is yes, has the Crown proven beyond a reasonable doubt that the accused had the requisite mens rea and that there was no mistaken belief in communicated consent?

Has the Crown proven beyond a reasonable doubt that the complainant did not consent to the sexual activity?

What is consent?

65“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” and it must be freely given.

66This consent must exist at the time the sexual activity in question occurs. It can be revoked at anytime and it must be linked to the “sexual activity in question”, the specific physical sexual act. The focus, at this stage, is squarely on the complainant’s state of mind and whether she wanted the sexual activity to take place at the specific time: R. v. Barton, at para. 88; R. v. J.A., at paras. 31, 34, 40, 43; R. v. Ewanchuk, at para. 26. “To repeat, 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”: R. v. Ewanchuk, at paras. 25-26; R. v. G.F., at para. 43.

67There is no such thing as implied consent. Silence does not equate to consent. A complainant need not scream or say no or stop. A complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established: R. v. Barton, at para. 89; R. v. J.A., at para. 37. As stated by Moldaver J., speaking for the majority in R. v Barton at para. 89:

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.

ANALYSIS

68WJA testified in a reasonable and straightforward manner. He was frank, forthright, and candid in his retelling of the events and the sexual encounter and individual sexual acts.

69WJA had a great recollection of the sexual encounter. He effortlessly described the complainant’s apartment and provided extensive details of the discussions between the parties including a very detailed narrative of the flow and movement of the sexual acts and of the entire sexual encounter.

70WJA through his testimony exhibited that he was careful and methodical in his approach to this planned sex encounter. He repeated conversations that he had with the complainant prior to entering the apartment relating to health and safety, including questions regarding STDs, birth control and condom use. He repeated questions asked by him and answers given by the complainant as the sexual encounter progressed, which were designed to ascertain ongoing and continuous consent to the various sexual acts. While WJA’s testimony was not perfect, by his words and deeds he clearly understood and sought out communicated consent on an ongoing and continuous basis.

71To the extent that the details of the sexual encounter and/or sexual acts provided by the accused WJA were either absent or differed from the details provided by the complainant AN, I prefer and accept WJA’s testimony.

72WJA did not hesitate in his testimony. His recitation of the events flowed naturally through his narrative and included details that were not always favourable to him. WJA did not appear to taper or sanitize his evidence and I found him to be a credible witness who provided reliable testimony.

73AN presented as a soft spoken but intent witness, decisive in her testimony. AN testified in a calm and straight forward manner. However, there were many details either admitted by AN to have occurred or admitted by WJA and found by me to have occurred that were not disclosed by AN to either the police or the Crown.

74AN testified that the omission of certain details occurred through oversight and/or were not included as she deemed them irrelevant.

75The relevant details of the sexual encounter that were omitted from AN’s initial recitation of facts, that are accepted by me as having occurred, are as follows:

i. prior to entering AN’s apartment, WJA advised AN that he did not have a condom and AN said that was okay they didn’t need one;

ii. WJA asked AN if she owned any sex toys and she directed him to her bedside table where her vibrator and “flogger” were stored;

iii. WJA removed AN’s flogger from her bedside table and discussed use of the flogger with AN;

iv. WJA asked AN if he could “hit” her, and she said “Yes”;

v. WJA asked AN if he could degrade her, and she said “Yes”;

vi. WJA asked AN if he could call her fat, and she said “Yes”;

vii. WJA asked AN if he could video/photograph her, and she said “No” and as a result no video/photos were taken;

viii. WJA asked AN if he could video/photograph her if he did not capture her face or her tattoos and she said “No” and as a result no video/photos were taken;

ix. WJA asked AN if he was being “too rough” while pulling her hair and she said “No” for a bit and when she replied “Yes” he eased to comply with her instruction;

x. WJA asked AN if she liked to engage in anal sex and she said “No” and as a result no attempt was made to engage in anal sex;

xi. WJA asked AN to perform oral sex upon him, and she complied;

xii. WJA asked AN to “ride him”, and she complied;

xiii. WJA asked AN if he could ejaculate inside of her, and she said “Yes”;

xiv. WJA asked AN for a cloth or a t-shirt to clean up and she brought him a warm wet facecloth to clean himself; and

xv. upon leaving, WJA wished AN “Good night” and later texted her to advise he got home safely and “hoped that she had a good time”.

76I am cognizant that at the first stage of the analysis it is the subjective intent of the complainant AN that is the focus. However, I must still be satisfied beyond a reasonable doubt that I accept her evidence that she did not consent to all the sexual activity. I am not.

77While I find AN to be a credible witness, I find her recall of the events to be lacking and to the extent that relevant details were absent from her narrative I accept and prefer the narrative and testimony provided by the accused WJA. Overall, he described the complainant consenting to each aspect of their sexual activity by word or by deed. He carefully explored with the complainant her preferences with respect to the various types of sexual activity. While WJA’s evidence was not perfect, his recreation of the events appeared natural, fluid, and fulsome. WJA appeared to be cognizant of the need to continuously seek and obtain consent and acted in accordance with this knowledge.

78The accused proceeded cautiously. He questioned the complainant. He made inquiries as to her comfort level. He intended to ensure that consent was freely offered. Further, in those instances where consent for a particular sexual act was not forthcoming the accused did not pursue the specific sexual act.

79I do not accept that AN believed that the inclusion of the sex toys and more specifically the “flogger” was irrelevant. Having considered the whole of the evidence, it is my view that AN’s retelling of the events specifically omitted details that provided context to the nature of the sexual encounter including context to the bites, the slaps/taps, the “choking”, and the lack of condom use.

80Having reviewed and considered the entirety of the evidence in the context of the sexual encounter, including the entirety of the evidence as it relates to each individual impugned sexual act (biting, slapping, choking, lack of condom use and otherwise all sexual acts that followed the biting), while I do not accept all of the accused’s evidence, I find that that his evidence leaves me in reasonable doubt as to whether the complainant AN at the time that the sexual acts occurred and in the moment that the sexual acts occurred consented to the sexual acts (biting, slapping, choking, lack of condom use, and otherwise all sexual acts that followed the biting).

81I find that the evidence provided by WJA regarding the ebb and flow of the sexual acts, the ongoing discussions and interactions between the parties, and the steps taken by him to ensure continuous and ongoing consent to the various sexual acts to be both internally and externally consistent with a finding of consent to the sexual acts and the sexual encounter between the parties.

82Having considered the evidence in its entirety, I find that the evidence of the accused WJA leaves me with a reasonable doubt that the complainant failed to consent to the sexual acts engaged in between the parties on August 13, 2020.

CONCLUSION

83For the reasons contained herein, as I am left with a reasonable doubt as to the accused’s guilt an acquittal shall be entered with respect to the charge.

Madam Justice S.J. Woodley

Released: May 24, 2022

COURT FILE NO. CR-21-15526

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

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• W.J.A.