R. v. Valiquette, 2022 ONSC 4530
COURT FILE NO.: CR-20-122
DATE: 2022/08/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHAD VALIQUETTE
Defendant
M. Crystal, for the Crown
G. Clark, for the Defendant
HEARD: May 9-12, 2022
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.
REASONS FOR DECISION AT TRIAL
Ellies R.S.J.
OVERVIEW
[1] Mr. Valiquette ("the accused") is charged with sexually assaulting M.C. ("the complainant") during what began as a consensual sexual encounter on the night of September 24, 2018. The complainant alleges that the accused struck her during the encounter. The Crown argues that the blow vitiated the complainant's consent to the sexual acts that followed. While the defence agrees with the Crown's legal position, the accused denies that the blow ever happened and maintains that the complainant validly consented to all of the sexual acts that occurred that night.
[2] As with many cases of sexual assault, the central issue is one of credibility. The question is whether the Crown has proven that the complainant's version of events is true beyond a reasonable doubt. For the following reasons, the answer is "no".
BACKGROUND FACTS
[3] At the time of the events leading to the charge, both the complainant and the accused were in their mid-40s. They were known to each other because of their common interest in Indigenous art. Both identify as having an Indigenous background, the complainant perhaps more so than the accused. They were also both users of the social media platform, Facebook. They had never had a sexual encounter with one another before, although the complainant testified that she had known the accused "in a flirtatious manner".
[4] On September 24, 2018, the complainant posted a message on Facebook in which she wrote about the passing of her niece in a tragic car accident in Saskatchewan. She messaged the accused that evening, telling him that she was looking for company. She wrote that she was "looking for a good fuck, emphasis on the word 'fuck'". She wrote him that she liked anal sex, having her hair pulled, and that she was "into anything". The complainant gave the accused her address and invited him to come over.
[5] The accused arrived by bicycle at the complainant's residence sometime after 11:00 p.m. He asked if he could bring his bike into the house. The complainant agreed and brought him down to the room she occupied in the basement of a house she shared with a male roommate and her two sons, one of whom was in his bedroom upstairs. The complainant's room was down a short set of stairs that included a landing. The room was filled with boxes, as the complainant was packing to move to Ottawa. Where the accused placed his bike when he got to the room is a fact in issue. The Crown contends that he placed it in such a way as to prevent the complainant from leaving the room.
[6] According to both the complainant and the accused, the complainant was dressed in a revealing négligée or lingerie of some sort and the two of them began to kiss almost as soon as the accused got downstairs. They undressed and the complainant laid down on her back on her bed. The accused began to give the complainant oral sex and then began to engage in vaginal intercourse with her. According to both witnesses, the complainant was enjoying the interaction. However, their versions about what happened next differ substantially.
The Complainant's Version of Events
[7] The complainant testified that she had her eyes closed while she and the accused were having intercourse. Suddenly, she said, she felt a sharp blow to her left breast, about a third of the way down her torso. She did not see whether the accused's hand was open or closed when he hit her, but did see his follow-through. She was not expecting the blow and yelled "What the fuck?!" The shock caused her to clench up, something the accused appeared to enjoy because he said something like "Oh, yah, Baby". The complainant, on the other hand, made her displeasure known. She put her arms up to protect herself and told him, "That's enough. Whoa, that's enough."
[8] The complainant testified that from this point forward, she participated only to protect herself and her youngest son, who was sleeping upstairs. She was asking herself what she had gotten herself into and how she was going to get out of it. According to the complainant, she decided that the best way to get the accused to stop was to be compliant. As she put it, the accused "continued to enjoy" the sex, while she "continued to endure" it.
[9] While the evidence of the complainant and the accused is different about the blow, it is similar about the sex acts in which they engaged afterwards. According to both witnesses, they continued to engage in vaginal intercourse for a few minutes before the complainant flipped over on the bed. The complainant testified that she did this because she wanted to crawl on her hands and knees to the door of the room, but the accused took it as an invitation to engage in anal sex, which they began to do. She said that at one point while they were having anal sex, the accused struck her again on her hip. He also pulled her hair. The complainant testified that, while the accused was doing these things to her, she was saying things like, "that's enough" and "that's too rough", but the accused continued undeterred.
[10] According to the complainant, the anal sex ended when the accused flipped her over again and told her that she was going to give him oral sex. She refused, however, and the accused relented. The complainant then wrapped herself in a towel that had been left on the bed earlier, the two of them laid down beside one another, and the accused began to talk to her about her art. The complainant described the conversation as "surreal", coming in the context of what had taken place earlier.
[11] The complainant testified that the conversation ended when the accused took her towel away, got on top of her, and started having vaginal sex with her again. The complainant said that, while this was happening, the accused asked her, "Why aren't you scared?" She replied, "You can no longer dominate me. This will not end well for you. I will kill you." Notwithstanding the threat, the complainant said she let the accused continue to penetrate her vaginally until he ejaculated and rolled off of her.
[12] According to the complainant, she and the accused then engaged in another surreal conversation about her art and her move to Ottawa. The conversation ended when the accused asked if he could see her again and she replied, "Fuck, no". The accused then retrieved his bike and left the way he came "as if (they) had just played chess", according to the complainant. The entire episode lasted less than an hour.
The Accused's Version of Events
[13] The accused denies that he hit the complainant on the torso and maintains that he did only what the complainant asked of him throughout the entire sexual encounter. This included grabbing her breasts at first, giving her oral sex, and participating in the vaginal sex in which they were engaged at the time the complainant says she was struck.
[14] The accused testified that, after the vaginal sex, he and the complainant began to engage in anal sex at her request. While they were having anal sex, the complainant told him to "fuck (her) harder" and asked him to spank her buttocks, which he did, although he found he was in an awkward position to do so. According to the accused, the complainant also asked him to pull her hair and choke her, which he also did.
[15] According to the accused, the anal sex lasted about three to five minutes. The accused testified that the position he was in was uncomfortable and he needed to take a break. However, according to him, the complainant wanted to resume having sex again within a minute of stopping and, at her direction, he began to engage again in vaginal intercourse, with the complainant face down on the bed.
[16] The accused testified that he needed another rest after a couple of minutes. Accordingly, he pulled out of the complainant and backed up. The complaint flipped over on the bed. While the accused was resting, the complainant began touching his thighs and pulled him closer to her. She grabbed his penis and the two of them began having vaginal sex again.
[17] According to the accused, he was not enjoying the sex as much as the complainant seemed to be, but he ejaculated, nonetheless. After he climaxed, the accused pulled out and stood up. He testified that he was tired and dizzy, so he first sat on the bed and then laid down on it. According to the accused, that was the point at which the complainant got the towel that she wrapped around herself, which she retrieved from somewhere other than the bed, and the point at which they began to talk about her art and about her move to Ottawa.
[18] The accused testified that when the discussion about art and Ottawa was coming to an end, it returned to the subject of sex. He testified that the complainant said to him "That was rough. Let's go gentle." He said that her comment surprised him and it showed on his face. At that point, the accused testified, the complainant said something that did more than just surprise him. According to the accused, the complainant had a "strange" look on her face and said to him, "Indian girls like to fight White boys". The accused testified that the comment "felt dangerous" and made him want to leave. He got up, told the complainant he was tired and wanted to go home, wished her luck in Ottawa, and left.
The Medical Evidence
[19] At the suggestion of her roommate, the complainant went to the police on September 25, 2018. However, according to her, they told her that they would not be able to speak to her for a few hours due to some unrelated emergency in the city. Thus, the complainant went to the hospital for help, instead, arriving there in the evening. As it turned out, there was already a female police officer at the hospital on another matter, who then met with the complainant. The officer testified that she observed the complainant to be visibly upset. She also observed some redness on the complainant's neck and at the back of her head.
[20] In addition to meeting with the police officer, the complainant was examined by a nurse who was a member of a Sex Assault and Domestic Violence team trained in administering a sexual assault forensic evidence kit, among other things. The nurse examined the complainant, took a number of photos, administered various tests, and completed a number of documents that form part of the kit. The photos and the documents she created at that time were admitted as exhibits as proof of the truth of their contents.
[21] The nurse testified that she noted the following during her examination of the complainant:
(a) a red area approximately 3-4 cm x 5 cm on the back of the complainant's scalp;
(b) a reddened area on the right side of the complainant's neck with "underlying purple tone";
(c) a 1.5 cm x 2.5 cm spot on the right side of the complainant's neck that she thought might be an early bruise;
(d) a faintly discoloured area 2 cm x 2 cm on the complainant's upper back that was possibly another early bruise;
(e) a 2 cm x 2.5 cm bluish/purplish bruise on the complainant's left breast; and
(f) a superficial abrasion without bleeding in the area of the complainant's labia minora (an area of the complainant's vagina near her anus).
[22] In addition to the observations she made, the nurse also noted that the complainant complained of pain in the area of her left torso along the ribs and under the breast, as well as on the left elbow.
[23] The nurse took swabs of the areas that the complainant alleged were bitten by the accused, but there is no evidence that they were ever analyzed or, if they were, of the results.
The Post-Incident Text Evidence
[24] After he left the complainant's home in the early morning hours of September 25, 2018, the accused sent her a text. The complainant later showed the text to the police officer with whom she spoke at the hospital and the officer took a photo of the text at police headquarters. Because it is brief and important to the Crown's case, I will set it out in full. It was received at 1:23 a.m. and reads (errors in the original):
so that was awkward. i felt like some kind of #metoo dude.
sorry if you thought that was rough. It's just when you say you're into anything and tell me you want me to pound your ass, it's kind of what i'm hearing. I have slept with aboriginal women before by the way lol. You just have to be clear about what you may or may not want is all.
but hey…women in 2018..the world is fucked up.
good luck in ottawa and all.
[25] The accused testified that he sent the text because he was upset by the complainant's comment about "'Indian girls" liking to fight "White boys" and included the comment about having slept with Aboriginal women before because he has and they have never said that sort of thing.
ISSUES
[26] While the law surrounding consent in sexual assault cases can be complex, the Crown and the defence agree that the issue in this case is a simple one. If I accept the evidence of the complainant about the blow to her torso beyond a reasonable doubt, the accused must be convicted of sexual assault. Because the complainant did not consent to the blow, the blow itself might constitute a sexual assault and so, too, would the sexual acts that followed it because the complainant's consent to those acts would be vitiated by virtue of ss. 265(3)(a) and (b) of the Criminal Code, R.S.C. 1985, Chap. C-46. These sections provide that no consent is obtained where the complainant submits or does not resist by reason of the application of force or of threats or fear of the application of force.
[27] The sole issue, therefore, is whether I am persuaded beyond a reasonable doubt by the complainant's evidence about the blow and whether she consented to the sexual acts that followed it.
ANALYSIS
The Governing Principles
[28] As I noted earlier, this is a credibility case. By that, I mean that I am required to assess both the believability and the accuracy of each witness's evidence in order to determine if the Crown has satisfied its burden: R. v. G.F., 2021 SCC 20, at para. 82.
[29] A credibility case, however, is not a credibility contest. I am not required to choose between the evidence of the complainant and the evidence of the accused. I am free to accept some, all, or none of each witness’s evidence: R. v. Tillekaratna, 1998 6341 (ON CA), 124 C.C.C. (3d) 549, 1998 CarswellOnt 1726 (Ont. C.A.), at para. 11. Where I accept the evidence of the accused, he must be acquitted. If I do not accept his evidence, but I am left with a reasonable doubt by it, I must also acquit. Even if I am not left with a reasonable doubt by the accused's evidence, I must acquit him where I am left with a reasonable doubt about an essential element of the offence, including the absence of consent, based on the rest of the evidence: R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at p. 409; R. v. B.D., 2011 ONCA 51, at para. 96.
[30] To assess the credibility of these two witnesses, I have considered the demeanor of each witness, the plausibility of the evidence of each witness, and whether the evidence of each witness is consistent, both internally and when compared to other evidence about key areas of the case.
The Demeanor of the Witnesses
[31] The appearance of a witness as he or she testifies is one of the factors that a trial judge may consider in assessing credibility: R. v. S. (N.), 2012 SCC 72, at para. 25.
[32] I understand that testifying in a case like this must be very difficult for both the complainant and the accused. However, even taking that into consideration, I must say that neither witness was particularly impressive. The accused was cautious to the point of being evasive at times. This was true, for example, of his testimony during cross-examination about how long it took him to get to the complainant's house by bicycle.
[33] Nonetheless, with respect to demeanor, the accused was the better witness. The complainant was not only evasive, but argumentative, as well. For example, she refused at one point during her cross-examination to answer whether threatening to kill the accused was different than complying with his demands.
[34] At times, the complainant's argumentative nature led her to say things that were obviously untrue. During another part of her cross-examination, for example, she was confronted with what was obviously an inconsistency between her trial testimony and the testimony she gave at the preliminary inquiry. At trial, she refused to admit that she viewed her sexual encounter with the accused as "a distraction" from the tragedy of her niece's accident. When confronted with her evidence to that exact effect from the preliminary inquiry, she refused to admit the contradiction, arguing instead that the evidence she gave on each occasion was true. The point is not whether the complainant welcomed the encounter as a distraction. The point is that she was prepared to say something that was obviously not true. That leaves me wondering what liberties she took with less obvious facts.
[35] That said, however, demeanor is not a particularly strong indicator of a witness's truthfulness: R. v. Hemsworth, 2016 ONCA 85, at paras 44-45. A better indicator is the plausibility and consistency of the evidence as compared to other evidence. In this sense, the evidence of both witnesses suffered to some degree, with that of the complainant suffering much more than that of the accused.
Implausibilities and Inconsistencies
[36] There were several statements that I found to be implausible in the evidence of the accused. At one point, he testified that he was not fully expecting to have anal sex with the complainant when it began. At other points, he said was not "100 percent" into anal sex and "not really into" the vaginal sex they were having. I found the evidence about vaginal intercourse to be implausible in light of the uncontroverted evidence that the complainant made it known she wanted to have sex with the accused before he attended her residence. I found the evidence about anal intercourse to be implausible in light of the uncontroverted evidence that the complainant also made it known exactly what kind of sex she wanted.
[37] However, while the accused's evidence suffered from these implausibilities, the complainant's evidence suffered from both implausible and inconsistent statements. These included the following:
(a) The complainant testified during her examination-in-chief that she did not understand that she could refuse to consent to what the accused was doing to her. She said that she believed that just inviting him into her home allowed him to do whatever he wanted to her. However, it was revealed during her cross-examination that the complainant had received training from the police in the early 1990s in her capacity as an Indigenous child welfare worker in "recognizing sexual behaviours and concepts". The complainant also testified that she had worked with both sexual offenders and their victims. The transcript of her cross-examination about her training provides a good example of the complainant's argumentative nature:
Q. And you mentioned, I think, some other training you had in this area in [this part redacted under s. 486.4]?
A. I’ve had a lot of training: Institute for the Prevention of Child Abuse, child welfare training, sexual abuse.
Q. Okay. And the sexual abuse, what other training about sexual abuse?
A. Sexual abuse in Indigenous communities. Collateral violence.
Q. When did you have the sexual abuse training in relation to Indigenous communities?
A. Around the same time.
Q. And again, did that equip you with some understanding then of the nature of sexual assault and how victims and offenders might respond?
A. Are you thinking of giving me a job?
Q. I’m sorry?
A. Are you thinking of giving me a job?
THE COURT: Please, Ms. C.
I find it implausible that the complainant would believe that the accused could do anything he wanted to her in light of her training and experience in working with sexual abuse victims and perpetrators.
(b) Although she was thoroughly interviewed by the police shortly after her visit to the hospital in 2018, the complainant never mentioned anything to the police about her dog being present during the incident until August 8, 2019, the date she was first supposed to testify at the preliminary inquiry. At trial, she testified that she had to stop her dog from biting the accused after the dog "lunged" onto the bed while they were having sex and after the accused allegedly hit the complainant. I find this evidence to be implausible in light of the complainant's evidence that she was "being raped" anally and vaginally at the time. While it would be improper to suggest that the complainant ought to have resisted the accused, I do not believe it is improper to suggest that, in such circumstances, she would not likely have interfered with the efforts of her dog to stop what was happening. I do not accept her explanation that she was trying to prevent her dog – a 75 lb. Husky and Elkhound mix – from being hurt.
(c) The complainant's evidence at trial that the accused asked her "Why aren't you scared?" when they resumed vaginal intercourse after their discussion on the bed differed from two previous statements she made about that part of the incident. She told the police that, as the accused was getting excited again following their discussion, she said to him, "Don't hurt me this time" and he replied "I won't." At the preliminary hearing, she testified, instead, that the accused said nothing to her at this point in the encounter. These are significant contradictions, in my view.
(d) The complainant testified that she was being "manhandled" by the accused as she was moving between positions on the bed in which she was sometimes on her back, sometimes on her front, and sometimes on her hands and knees. However, the complainant testified that she weighed between 210 and 220 lbs. at the time of the incident. While I have no evidence as to the weight of the accused at the time of the incident, I did have the benefit of observing him throughout the trial and, based on my observations, he would have to have been much bigger than he was during the trial to make it plausible that he was "manhandling" her in the way she says he was. I doubt that the complainant's threat to kill the accused would have had the frightening impact she said it had if, in fact, he was.
(e) Finally, and perhaps most significantly, I found the complainant's evidence about how she brought the incident to an end to contradict her earlier evidence about how frightened she was after being struck and to make implausible her evidence that she was rendered compliant by a blow. It seems unlikely to me that someone who was quite capable of bringing the encounter to an end by threatening to kill the accused would otherwise have allowed him to do anything she did not want him to do. I find this part of the complainant's evidence to be more consistent with the evidence of the accused that he was being told what to do by the complainant than it is with her evidence to the contrary.
[38] Overall, I found the evidence of the accused to be more credible than that of the complainant, although, as I will explain, not credible enough to do more than raise a reasonable doubt about his guilt.
[39] I move now to consider specific areas of the evidence with respect to which counsel devoted the bulk of their submissions.
The Placement of the Bike
[40] The complainant testified that she was unable to leave during the assault because of where the accused placed his bike in her room. The Crown contends that the accused purposely placed his bike so as to impede or prevent the complainant from escaping the area in which they had sex. I am unable to accept this submission for two reasons.
[41] First, I do not accept the complainant's evidence about where the accused placed his bike in her room. I found her evidence about the placement of bike to be vague, at best. She testified in cross-examination that she "didn't really see where exactly his bike was". In re-examination, she testified that the bike was placed along the small pathway between the boxes and other items spread out on the floor (where her dog is shown in Ex. #5-7). However, the area in which the complainant testified the accused put his bike has nothing near it capable of supporting the bike.
[42] In contrast, the accused's evidence about the bike was quite definite. He testified that he placed the bike in what I believe was the only logical place to put it: namely, leaning against a door frame and a dresser. If, as I believe, the bike was placed where the accused said it was, then it would not have interfered much, if at all, with the complainant's path of egress from the area of her bed.
[43] Second, I do not accept the premise implicit in the Crown's submission that the accused planned on placing his bike so as to prevent the complainant from escaping. There is no evidence that the accused knew before asking the complainant if he could bring the bike inside where he would be placing it in the house or what condition that area was in. Further, based on the messages he had received from the complainant, there was no need to prevent her escape: she had invited him over to have sex and told him she was "into anything".
The Medical Evidence
[44] The Crown contends that the evidence of injuries to the complainant's body supports her version of events and is not explained by that of the accused. For that reason, the Crown submits that the medical evidence is confirmatory of the testimony of the complainant. Again, I am unable to agree for two reasons.
[45] First, the observations of the nurse at the hospital are not all explained by the evidence of either witness. The complainant never testified that the accused bit her back, as she apparently told the nurse, who noted a faintly discoloured area on the complainant's left upper back. Nor did the accused testify about any activity that could have caused this mark.
[46] Second, the remaining marks on the complainant's body are just as consistent with the evidence of the accused as they are with the evidence of the complainant.
[47] With respect to the marks on the complainant's breasts, the accused testified that, while he and the complainant were kissing shortly after he arrived, the complainant asked him to "grab her tits", which he did. He said that, while he was performing oral sex on her, the complainant was grabbing her own breasts and squeezing her nipples. He also said that, while he and the complainant were having vaginal sex, both the first time and the second time, she was again grabbing her own breasts. There is no expert evidence that the marks observed on the complainant's breasts are more consistent with them being bitten than grabbed. Moreover, the accused also testified that, while he and the complainant were having vaginal sex, he not only grabbed her breasts, but also kissed them and sucked her nipples.
[48] As the evidence relates to the nurse's observations of marks on the complainant's head and neck, the accused also testified that the complainant asked him to pull her hair and to choke her, which he did.
[49] Finally, without expert evidence I am unable to conclude that the observations of chafing in the complainant's vaginal area are more consistent with the complainant's evidence than with that of the accused. I note, as well, that the complainant never mentioned using a lubricant when she and the accused were having consensual sexual intercourse, even though she testified that she had some available.
[50] For these reasons, I am not able to agree that the medical evidence bolsters the complainant's credibility. Indeed, one could argue that the medical evidence actually undermines her credibility in at least two ways. First, the complainant's testimony at trial conflicts with what she told the nurse. At trial, the complainant testified that she was hit more on the left breast than on her ribs. However, the nurse noted that the complainant told her she was hit "under" the breast, not on it.
[51] Second, the complainant testified at trial that the blow was a forceful one. Yet, although other marks on the complainant's body were visible to the nurse from activities such as the choking and hair pulling, there were no marks visible at the site of the alleged blow.
[52] On the whole, therefore, the medical evidence does nothing to further the Crown's case.
The Post-Incident Text Evidence
[53] The Crown also argues that the text the accused sent to the complainant after leaving her residence that night supports the complainant's evidence and contradicts that of the accused. I am not able to agree fully with either submission.
[54] The Crown submits that the accused's failure to mention the complainant's comment that "Indian girls like to fight White boys" is a material omission in the text that constitutes a contradiction, given the accused's evidence that it was this comment that frightened him into leaving the complainant's residence that night. However, I accept the accused's evidence that he meant to address the complainant's comment about Indian girls and White boys by telling her that he had slept with Indigenous women before. I find the remaining text to be consistent with the accused's evidence that the complainant said to him before he left, "That was rough. Let's go gentle". Certainly, the text is more consistent with the accused's evidence in this respect than it is with that of the complainant, according to whom the only thing that was said before the accused finished and left was that she was going to kill him.
[55] Contrary to the submissions of the Crown, I also do not find the accused's use of the word "pound" in the text ("when you tell me you want me to pound your ass"), rather than the word "fuck" to be a material inconsistency with the accused's testimony in court.
[56] However, there is one part of the text that I do find to be inconsistent with the evidence of the accused. According to the accused, the complainant directed him specifically with respect to each act, including the spanking, the choking, and the hair pulling. I find the portion of the text in which the accused wrote "It's just when you say you're into anything and tell me you want me to pound your ass, it's kind of what I'm hearing" to be inconsistent with this evidence. The language chosen by the accused suggests that he had to interpret what the complainant wanted at times, rather than simply following her directions. Certainly, if the accused wanted to refer the complainant to acts that she had directed him to perform that qualified as "rough" sex, choking and hair pulling would probably have been better examples than vigorous intercourse.
[57] For these reasons, I do not find the text evidence to be particularly helpful to the credibility of either the complainant or the accused.
CONCLUSION
[58] For the reasons expressed above, I do not fully accept the evidence of either the complainant or the accused about the events of the night in question. Nonetheless, when considered in the context of the evidence as a whole, the evidence of the accused leaves me with a reasonable doubt about whether he struck the blow alleged by the complainant and whether she consented to the sexual acts in which they engaged thereafter.
[59] Because the Crown must prove beyond a reasonable doubt that the complainant did not consent, the accused must be found not guilty.
[60] The indictment will be endorsed accordingly.
M.G. Ellies R.S.J.
Released: August 5, 2022
R. v. Valiquette, 2022 ONSC 4530
COURT FILE NO.: CR-20-122
DATE: 2022/08/05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHAD VALIQUETTE
Defendant
REASONS FOR DECISION AT TRIAL
Ellies R.S.J.
Released: August 5, 2022