COURT FILE NO.: CR-20-00000743

DATE: 2022/01/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Brent William Diehl, Defendant

Elizabeth Wilson, for the Crown

Lakin Afolabi, for the Defendant

HEARD: January 17 and 18, 2022

REASONS FOR DECISION - Delivered Orally

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that could identify the person described in this judgment as the complainant shall not be published in any document or broadcasted or transmitted in any manner.

garson j.

Introduction

[1] Brent Diehl, the defendant, stands charged with a single count of sexual assault with a weapon.

[2] The defendant met JA, the complainant, in late May or early July 2019 at the C[...] Bar in Listowel (“the bar”), where the complainant works as a server/bartender. They exchanged numbers and communicated by text message and, later, through Snapchat.

[3] The complainant alleges that she initially engaged in some consensual sexual activity with the defendant but after a certain point withdrew or revoked her consent to specific and further sexual activity. The defendant denies that many of the sexual acts alleged took place and insists that the few sexual acts that did occur were consensual. Therefore, the main issues for determination by me is whether the alleged events occurred and, if so, the presence or absence of consent by the complainant to these events.

[4] The complainant, the defendant, and a treating nurse testified. The defendant concedes identity and jurisdiction. These reasons explain the verdict that I have reached.

Background

The Incident

[5] JA was working on the evening of September 7, 2019. The defendant arrived at the bar just before 8:00 p.m. He consumed some food and six bottles of Bud Light at the bar during the evening.

[6] The defendant and JA playfully chatted throughout the evening. At one point he grabbed her “butt” when she was standing at the bar. She was not opposed to him doing so and responded positively.

[7] The defendant left the bar shortly after 11:30 p.m. that evening with the bar owner and another staff member. According to the defendant, they went to an old work colleague’s home, where the defendant remained until shortly before 1:00 a.m. At this location, he testified that he consumed another three or four beers.

[8] He next walked back to his apartment with a friend he had not seen in some time. Upon arrival, he briefly showed her his new apartment. She left shortly after 1:00 a.m. Although he initially planned to go to sleep, he found himself “in the mood” and decided to Snapchat JA to see if she was up for some sex.

[9] JA’s shift ended just after 1:00 a.m. that night. She grabbed a Tim’s coffee and was heading home when she received a Snapchat from the defendant which read “What’s up want to fuck?”

[10] She responded in the affirmative, turned her vehicle around, and headed to the defendant’s apartment. Upon arrival, she observed the defendant standing outside. He appeared intoxicated, weaving a bit but not stumbling or slurring his words.

[11] They had a smoke outside and then proceeded to his apartment. They went into the kitchen and JA, who had not been drinking up to this point in the evening, made herself a rye and ginger ale. It is at this point that their stories diverge.

The complainant’s version of the events that followed

[12] According to JA’s testimony, the defendant came up from behind her and started kissing her neck and undoing her pants. While she proceeded to the bedroom to get undressed, the defendant grabbed something out of a kitchen cupboard and followed behind.

[13] In the bedroom, JA removed her pants and her underwear. She heard a “snap”, which she initially thought was the sound of the defendant putting on the condom she gave him, but she quickly realized it was the defendant placing an elastic around his penis.

[14] JA began performing consensual oral sex on the defendant. They attempted vaginal sex, but the defendant became flaccid and was unable to have intercourse.

[15] The defendant told JA to get on” all fours” and proceeded to digitally penetrate her rectum. She told him this hurt and to stop. He did so. They re-positioned on the bed. Once again, the defendant digitally penetrated her rectum. She again said no and told him that it hurt.

[16] It is at this point that JA says the sexual activity became non-consensual. On this second occasion of digital penetration of her rectum, the defendant did not stop when asked. Instead, he responded that it was “just a finger”.

[17] The defendant retrieved his belt from his pants at the edge of the bed and wrapped it around her neck. She placed two fingers between the belt and her throat to protect her windpipe. She was worried that the defendant might strangle her or that she would pass out.

[18] Again, he digitally penetrated her rectum. While doing so, he pushed her onto the bed and proceeded to tie her hands to the bedpost with the belt. He next flipped her on her back and with his knee on her left arm tied her right arm to a post and tied her left arm to her right wrist. He then proceeded to jam his penis into her mouth.

[19] JA felt like she was choking and could not breathe. He again attempted vaginal intercourse and was again unsuccessful due to his inability to maintain an erection. He moved her to the edge of the bed and re-tied her hands to the lower bed post. He kept “jamming his dick in [her] mouth”. At this point, JA panicked and managed to untie herself.

[20] She made fun of the elastic on his penis in the hopes that this would make him stop. He instead removed the elastic and attempted vaginal penetration and intercourse one last time. He stopped after this. JA did not know whether he ejaculated.

[21] JA got dressed and told the defendant that he did not have to be so rough. He responded that “gentle is not in my vocabulary”. She stumbled to the stairs to leave and he followed. He urinated behind her truck before she left.

[22] She drove to her boss’s house, which was nearby. She parked in the driveway, where she sat and cried for awhile. She deleted the defendant from her Snapchat. After she had calmed down enough to drive, she went home and went to bed.

[23] The next day she noticed bruising that she did not have before the incident on her neck, upper left arm, inner thighs, and shin. She took a series of eight photos of these bruises. She believed the neck bruising came from the belt and the thigh bruising came from the defendant grabbing her and pressing her down on the bed.

[24] She spoke with a friend about the incident later that day. She sought out medical attention on the following day, September 9, 2019, at the Seaforth hospital, where her family doctor practices.

[25] Hospital staff contacted police, who reached out to JA. She met them at the police station the following day and then went into the hospital in Kitchener, where a rape kit was performed and further photos were taken of the bruising on her neck.

[26] In cross-examination, she disagreed with an earlier statement to police wherein she told them that the belt was placed around her neck before she was further digitally penetrated.

[27] She also explained that her wording was off when she earlier told police that the defendant made her tie herself back up and explained that her wording used at that time was incorrect.

[28] She explained that after the second attempt at digital penetration she stopped saying no and “shut into herself”. She never said no to further acts of oral sex and attempted vaginal intercourse.

[29] She agreed that the affection shown earlier in the kitchen was welcomed and that she had agreed to intercourse when she attended the apartment.

[30] She disagreed that the defendant tried to manually stimulate himself. She denied getting angry with him because of his failure to sustain an erection.

The defendant’s version of the events that followed

[31] The defendant testified that the plan was to have “normal sex” that evening. He understood the term “normal sex” to mean vaginal intercourse. He insists that this did not happen because he was “too drunk to have an erection”.

[32] He recalled wearing long pyjama bottoms and the shirt he wore to the bar that evening when JA arrived at his apartment. Once in the kitchen, he took off her sweatshirt and top but did not touch her pants, which he insisted never came off that evening.

[33] Once they proceeded to the bedroom, his pants came off and he tried to make himself “get hard”, but he could not. He told JA he was sorry for wasting her time. JA became upset and angry and proceeded to call him “every name in the book” including “fucking asshole”.

[34] The defendant testified that there was no sexual contact between the defendant and JA in the bedroom: no digital penetration of her rectum. No oral sex. No discussion about condom use. No rubber band used on his penis. No tying her to the bedposts. No belt placed around her neck.

[35] In cross-examination, he agreed that he was feeling the effects of his drinking that night but was not intoxicated to the point of “falling down”. He had his wits and a sense of what was happening.

[36] He insists he kissed JA on the lips in the kitchen and not on the neck after coming up from behind her. He denies reaching for anything in a kitchen cupboard and denies asking for or being given a condom.

[37] He accepts that he wore a one-inch belt with a buckle with his jeans earlier that night at the bar but maintains that he placed both the jeans and the belt in his laundry basket earlier that evening and then wore pyjama bottoms.

[38] He tried to manually stimulate himself while she lay on his bed waiting for him in her pants and a bra. After two or three minutes of him unsuccessfully trying to stimulate himself, JA became angry and called him a “fucking asshole, a joke and a waste of fucking time”. She laughed at him and proceeded to storm out. He watched her leave in her truck as he proceeded outside for a smoke.

[39] He agrees that he did not hear from her after that nor did he try to communicate with her afterwards.

[40] There was no discussion about rough sex and he denied telling JA that “gentle was not in his vocabulary”.

[41] What happened that evening between the parties from the defendant’s standpoint was not a “big deal” and he denies ever being told “no” or “stop” by JA at any time that evening.

The Nurse, the Photographs, and the CFS Report

[42] Cheryl Coffey, a sexual assault nurse examiner from Grand River Hospital in Kitchener, briefly testified for the Crown about her observations of JA on September 10, 2019.

[43] In addition to collecting some swabs and some clothing, Ms. Coffey observed and photographed an 8 cm X 2.5 cm elongated red bruise on the left side of JA’s neck and two smaller green bruises on the right side of JA’s neck. She observed some bruising on both legs and on JA’s hip. A small red abrasion measuring 1 cm X 3 cm was observed on the outer vaginal area known as the posterior fourchette and fossa navicularis.

[44] A CFS Biology report from biologist Alison Morris, dated November 20, 2019, was filed on consent alongside an email explaining her findings. In short, Ms. Morris concluded that insufficient male DNA was located on both the anal and vaginal swabs or underwear submitted from JA to perform any tests or to make any findings, and so a male DNA profile could not be developed.

[45] In an accompanying January 11, 2022 email, Ms. Morris offered a number of possibilities that could explain the absence of results, including that no penile penetration or ejaculation occurred, that too much time had passed, or that bathing occurred between the alleged incident and the collection of the swabs.

Positions of the Parties

The Defence

[46] The defence insists any sexual activity between the parties that evening was consensual.

[47] They argue that the allegations are the result of JA being upset about the defendant wasting her time and being unable to have intercourse that evening. They urge the court not to rely on myths and stereotypes that falsely assume what a woman would or would not want or do in these circumstances.

[48] They argue that the defendant’s version of events is credible and reliable and should be believed. They point to some inconsistencies in JA’s evidence which should raise concerns about accepting and relying upon her evidence.

The Crown

[49] The Crown counters that JA is a credible and reliable witness and that her evidence is corroborated by photographs and observations from a treating nurse shortly after the alleged incident.

[50] The Crown submits that the evidence is clear that consent was not made out after a certain point that evening and that the defendant, while using his belt as a weapon, sexually assaulted JA and should therefore be found guilty of the offence.

The Law

Presumption of Innocence and Burden of Proof

[51] The defendant is presumed innocent of the charge unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.

[52] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It is also not proof to a level of absolute certainty. Simply put, it requires that I be sure that the defendant committed the offence.

Reasonable Doubt and Credibility

[53] In light of the evidence of the defendant, I must apply the principles established in R. v. W.(D), [1991] 1 S.C.R. 742, which provide as follows:

(i) If I believe the evidence of the defendant that he did not commit the offence, I must find him not guilty.

(ii) If I disbelieve his evidence but it nonetheless creates a reasonable doubt as to his guilt, I must find him not guilty; and

(iii) Even if I disbelieve him and his evidence does not raise a reasonable doubt, I can only find him guilty if, on the evidence that I do believe, I accept that his guilt has been proven beyond a reasonable doubt.

[54] If I cannot decide who I believe at the end of the day, I must acquit. W.(D.) does not apply to each individual piece of evidence but only to the essential elements of the offence.

[55] When assessing credibility, I must examine both the internal consistency of a witness’s evidence as well as the consistency of that evidence with other witnesses’ evidence. I must apply the same level of scrutiny to all witnesses.

[56] I must be mindful of the plausibility of a witness’s account and any motive to fabricate or embellish. Although I may consider the demeanour of a witness, I must be careful not to place too much weight on this factor in light of an increasing recognition that unique factors and individual traits may impact demeanour without affecting credibility.

[57] An honest witness may still be unreliable or have an imperfect or inaccurate recall of events.

[58] In cases of this nature, the credibility assessment is the central issue and ultimately informs the findings that determine whether the Crown has proven its case beyond a reasonable doubt or whether the evidence as a whole raises a reasonable doubt.

[59] Credibility speaks to veracity and truth-telling while reliability speaks to accuracy and trustworthiness. A motive to fabricate or lie are relevant factors that I may consider.

[60] What I must not do is permit a criminal trial to turn into a credibility contest where I simply pick one version of events over another. To do so undermines both the presumption of innocence and the burden of proof placed on the Crown.

Sexual Assault with a Weapon

[61] The offence of sexual assault with a weapon requires proof of four elements:

(i) an intentional touching;

(ii) of a sexual nature;

(iii) where a weapon is involved; and

(iv) in the absence of consent.

[62] Consent is defined in s. 273.1(1) of the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent refers to the person being touched and to whether that person subjectively consented at the time. In other words, whether the complainant, in her own mind, wanted the sexual activity in question to occur determines if consent was present. The state of mind of the person being touched may be reflected in their words or behaviour at the time. There is no presumption of consent and no implied consent. Consent must be freely given: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 31, 36.

[63] The Crown must establish that the complainant did not consent to the activity (the actus reus), as well as the defendant’s knowledge of—or recklessness or willful blindness to—the lack of consent (the mens rea).

[64] There must be evidence of consent through either clear words or clear conduct by the person being touched. Silence, passivity, ambiguity, or lack of resistance do not equate with consent. The burden of proof never shifts to the defendant.

[65] Section 265(3)(b) provides that the complainant’s consent to sexual activity may be vitiated by fear of the application of force. In other words, a person who consents to sexual activity because of fear of physical violence is deemed at law not to have consented.

[66] Section 273.1(2)(e) clarifies that there is no consent obtained where a person who previously consented to engage in sexual activity expresses a lack of agreement to continue. A person may revoke or withdraw consent to continue a sexual activity at any time.

[67] I must be careful not to subscribe to any of the judicially recognized myths and stereotypes regarding sexual assaults. I must be wary of assumptions of how a victim of sexual assault typically or normally responds to such acts.

[68] Though I must neither rely upon nor draw adverse inferences from any of these myths or stereotypes, I must nonetheless apply the same level of scrutiny to the complainant’s testimony as I do to the testimony of other witnesses: R. v. Greer, 2009 ONCA 505, at para. 6.

Discussion

Credibility Assessments

JA

[69] JA testified about a number of unwanted sexual acts. She readily admitted that some may have begun as consensual but eventually became unwanted. She acknowledged that she went there to have vaginal intercourse and consented to that sexual act.

[70] JA presented as a polite and respectful witness and appeared genuinely traumatized by these events. She had just started her first drink of the evening and had just come from a long work shift and was otherwise intending to drive home that evening. Her state of sobriety is a factor in assessing her ability to accurately recall the events that evening.

[71] She seemed genuine in her belief and her utterances that she did not want some of this sexual activity to occur. I accept that she sincerely believed that many of these events were without her consent. I also accept that many of these incidents subsequently led to pain and suffering on her part. She said “no” and “stop” that evening. I believe her and I accept her evidence as credible.

[72] However, I must also undertake a careful analysis of the reliability of her evidence, which ultimately is of paramount concern: R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at para. 47. Her evidence that she did not consent to some of the sexual activity remains subject to assessment in light of the totality of the evidence.

[73] In assessing her reliability, I consider the following:

(i) Her detailed, vivid, and clear recollection of how events unfolded and what took place both before and after the alleged incident;

(ii) Her photographing the bruising the following day and this same bruising being further photographed and observed by a trained nurse the day thereafter;

(iii) Some of the bruises, including those found around her neck and on her thigh, appear consistent with her account of how events unfolded that evening, including the use of a belt around her neck. I am mindful that no expert evidence was called to explain the aging or possible cause of such bruising.

(iv) Her immediate attendance at her own doctor’s office in the local hospital and her statement to police shortly thereafter, wherein she appeared quite upset; and

(v) The two inconsistencies with her evidence at trial that were pointed out by the defence. The first, mixing up the order of events in her earlier statement to police, was relatively minor. The second, using wording that suggested that she tied herself up with the belt, was explained as an incorrect wording that she chose at the time.

[74] She was an impressive and honest witness. I believe her and find her evidence both credible and reliable.

The Defendant

[75] The defendant offered a much different version of events. He was also polite and respectful when he testified. He did so in a calm and even tone.

[76] He withstood a lengthy and vigorous cross-examination by Crown counsel.

[77] He admitted to no fewer than six and as many as nine beers that evening. He agreed that he was feeling the effects of the beer that night but not to the point of falling down.

[78] I have difficulty with the plausibility of his version of events. He readily admits the idea of sex that evening was his and that he invited JA over. She attended and, after a quick drink and some light kissing in the kitchen, willingly proceeded to the bedroom to engage in vaginal intercourse.

[79] His story then suggests that, with her half undressed and lying on his bed, he spent about two or three minutes attempting to manually sustain an erection. He could not do so and apologized to her. This somehow set her off, and she became upset and angry and called him every name in the book and stormed out.

[80] I am mindful that defence cautions me to consider the notion that consenting women will calmly accept sexual disappointments as a potential myth or stereotype. Nevertheless, I reject the defendant’s evidence that the complainant became angry at his inability to perform and stormed out of his apartment. I further reject the notion, when considered in the context of all of the evidence before me, that the complainant went on to next concoct a very detailed and compelling account of his sexual abuse and mistreatment of her that evening and then somehow self-inflict a series of bruises on her body.

[81] Even if I were to accept—which I do not—that the defendant’s inability to maintain an erection made the complainant angry, the defendant’s story lacks believability and defies common sense: how did she get all of the bruising? Why did she immediately photograph her bruises? Why did she abruptly leave after two or three minutes?

[82] Simply put, his story is illogical and unreasonable. I do not believe or accept his version of events.

Cheryl Coffey

[83] I found much of Ms. Coffey’s unchallenged testimony straightforward. She corroborated that some of the injuries of JA were consistent with the alleged assault. I am mindful that she was not there and so cannot assist in the determination of whether the events that night occurred and, if they did occur, whether they were consensual.

[84] I do accept her evidence.

[85] The CFS biology report is of little assistance to me.

Applying the Legal Principles

[86] I need not spend much time on the first three essential elements of this offence. Having accepted JA’s evidence, I find as facts that after the defendant digitally penetrated JA’s rectum on a second occasion, she said no and told him it hurt and told him to stop. He did not.

[87] He proceeded to retrieve a belt and wrap it around her neck and again digitally penetrated her rectum. He tied her to the bedpost and thrust his penis into her mouth. She felt like she was choking and could not breathe. He unsuccessfully again attempted vaginal intercourse and retied her hands to the lower bedpost and again “jammed his dick” in her mouth. After he removed the elastic from his penis, he again attempted vaginal intercourse one final time unsuccessfully.

[88] I am satisfied that these were acts of the intentional touching or application of force that occurred in sexual circumstances. I am also satisfied that the defendant used a belt that was wrapped around JA’s neck during part of these incidents. In these circumstances, there is no doubt that the belt was used as a weapon to threaten, intimidate and, in this case, physically harm her. I therefore now turn my focus to the remaining issue of consent.

Did JA Consent?

[89] If I look at JA’s subjective state of mind at the time of these alleged acts, it is clear that she was not consenting to the sexual activity at the point in time when the defendant digitally penetrated her rectum and she told him “no” and “stop”.

[90] The only relevant time period that I examine to determine JA’s consent is at the actual time of the sexual touching. She must have consented to each and every sexual act in question.

[91] On this point, the evidence is overwhelming. Both parties agree that she went there for vaginal intercourse. After the unwanted digital penetration of her rectum happened once, she was vocal that it should not happen again and that it hurt. This was not a case of passivity or silence. Her communicated lack of consent was clear and unambiguous.

[92] As the defendant readily admitted in his cross-examination, no means only one thing, and that is no. “Stop” is similarly capable of only one meaning.

[93] The law is clear. Consent must be given for each act engaged in and must be contemporaneous with the act.

[94] JA had every lawful right, having earlier consented to engage in vaginal intercourse with the defendant, to revoke or withdraw her earlier consent at any time. She did so. Clearly.

[95] Having made the earlier credibility assessments which inform my factual findings and the evidence I accept, that evidence demonstrates that there was no voluntary agreement from the complainant to engage in the sexual activity after the second digital penetration of her rectum.

[96] The defendant touched JA in a sexual way without her consent. He used a belt that bruised and intimidated her. The defendant knew JA did not consent but chose to ignore or disregard her clear and unequivocal “no”.

[97] She left hurriedly and upset. She photographed her injuries and sought medical attention. Her demeanour immediately following this event was inconsistent with someone who had left a consensual sexual encounter.

[98] JA did not want much of the sexual activity that evening to take place. She said she did not consent to certain acts and I accept her evidence. There was no consent.

[99] I am satisfied that the Crown has proven all of the essential elements of the offence alleged beyond a reasonable doubt.

[100] I return to the governing principles established in W.D. I disbelieve the evidence of the defendant that he did not commit the offence. His evidence does not raise a reasonable doubt. The totality of the evidence that I do believe and accept proves his guilt beyond a reasonable doubt.

Conclusion

[101] For the above reasons, I find the defendant guilty.

“Justice M.A. Garson”

Justice M.A. Garson

Released: January 27, 2022 (Delivered orally)

COURT FILE NO.: CR-20-00000743

DATE: 20220127

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Brent William Diehl

Defendant

REASONS FOR decision

Justice M.A. Garson

Released: January 27, 2022