COURT FILE NO.: CR-21-70000083
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
MOHAMED AHMED
Defendant
Ari Linds, for the Crown
Sabrina Shillingford, for the Defendant
HEARD: November 18, November 22, 2022
Reasons for Decision on the Application of the Rule against Multiple Convictions
mr. justice p. campbell
[1] On November 22, 2022, in brief proceedings, and with limited reasons, I sentenced Mr. Ahmed to a term of imprisonment, accompanied by a probation order and other ancillary orders. I also directed that convictions be entered on both counts 2 and 4 of the indictment, rather than entering a conditional stay on one of them pursuant to the rule against multiple convictions for charges arising from the same delict, known generally as the Kienapple principle. I advised the parties that reasons for this decision would be provided at a later date. These are my reasons.
The Evidence at Trial
[2] Mr. Ahmed was found guilty by a jury of five counts in respect of which the complainant, Z.W., was the victim. Z.W. was peaceably working on her smart phone in Woodbine Park on June 23, 2020 when she noticed the defendant some distance away. As she walked on a path from the sheltered stage she had been seated under, he approached her and, after a short verbal exchange in which she expressed a desire not to speak with him, he grabbed a small bag which contained the smart phone, an item she greatly prized.
[3] The defendant rode away on a bicycle but after covering some distance stopped and appeared to inspect the bag. Z.W. called to him, imploring him to return the phone. She walked toward him and he eventually walked toward her. They met near a stand of trees. At that point, an unusual conversation ensued the gist of which is that Z.W., hoping to secure the return of her phone and perceiving Mr. Ahmed to have a sexual interest in her, asked him if he wanted to rape her. He responded that he did not want to rape her but did want to “fuck” her.
[4] Thinking that an offer of some sexual contact was necessary to secure the return of her phone, Z.W. said, “I can do something else for you but not rape.” She then specified that if it would lead to the return of the phone, she would use her mouth and hands on him in a sexual manner. She specifically wished to avoid intercourse which she testified she would have regarded as very shameful, citing attitudes of the Chinese culture in which she was raised. She asked him to buy a condom in advance of the sexual activity and Mr. Ahmed, after she pointed him toward stores on nearby Queen Street, left to purchase condoms, while still in possession of the phone. Before his departure, in an attempt to persuade him to abandon the extortion, she told him she was 75 years old, five years more than her actual age. His response was that he liked old women.
[5] Upon his return, Mr. Ahmed gave the phone to Z.W., at her request. He then sat on the ground, on top of Z.W.’s poncho, exposed his penis, and placed a condom on it. They were in an unusually sheltered area, largely concealed by overhanging tree branches. Z.W. then performed oral sex for approximately fifteen minutes on Mr. Ahmed without him ejaculating. She became tired and asked him to assist in the activity by gripping and moving her head, which he did.
[6] After approximately eight more minutes, he had still not ejaculated. He pointed toward the ground, with a direction that she lie down. She did so and he began to perform vaginal intercourse which, from the outset, she had told him she did not want and which she strongly wished to avoid. This lasted a very short time – perhaps as little as three seconds – and he then removed his penis from her and masturbated until he ejaculated.
[7] At some point during the latter stage of these events, Mr. Ahmed said to her, “Don’t tell anyone else, otherwise I’ll kill you”. This threat, she said, left her scared. She told him she would not tell anyone.
[8] After he finished masturbating and was pulling up his pants, Mr. Ahmed told Z.W. she was “sexy” which she took to be an attempt to lower her defences. Shortly afterward, as she was walking away, Mr. Ahmed again grabbed the small bag containing the phone from her shoulder. She tried to resist his taking of the bag and in the brief struggle that followed injured her finger very painfully and fell to the ground, causing abrasions on her arm.
[9] Mr. Ahmed was able to leave the park on his bicycle with Z.W. making no further attempt to pursue him. With the aid of video surveillance evidence and DNA profiling of his semen, he was eventually identified and arrested.
[10] Z.W. was reluctant to disclose these events to her daughter and to the authorities but eventually did so. She omitted reference to the vaginal penetration from her original accounts but ultimately disclosed this to the police as well, a delay she attributed to the shame she felt from this form of sexual intrusion. The defence challenged her credibility on this point, suggesting that she was motivated to elevate the gravity of the offence by a desire to ensure a longer custodial sentence for Mr. Ahmed and particularly to make certain that he would not be granted bail at a point when his release was contemplated.
[11] The case for the Crown turned largely on the credibility of Z.W. Police and forensic experts provided confirmatory evidence on the periphery of the case. The defence called no evidence.
[12] The jury returned a verdict of guilty on count 1, the charge of robbery, which was treated as a single offence embracing both occasions on which Mr. Ahmed forcefully seized the bag containing the phone from the personal possession of Z.W.
[13] The jury also returned a guilty verdict on count 2, the charge of extortion, which alleged that by employing the power he had gained by stealing the smart phone, he did “with intent to obtain a sexual act, induce Z.W. to perform a sexual act” with him.
[14] I directed a verdict of not guilty on count 3, sexual assault causing bodily harm, and declined to leave it with the jury, on the basis that the same sexual assault was charged in count 4 and there was no basis in the evidence to conclude that non-consensual sexual contact was the cause of the bodily harm allegedly sustained by Z.W.
[15] The jury found Mr. Ahmed guilty on count 4, sexual assault. Because the nature of the sexual contact alleged was not specified in the count, the verdict did not reveal whether the jury found beyond a reasonable doubt that the assault included the sexual intercourse described by Z.W.
[16] On count 5, a charge of assault causing bodily harm, the jury was instructed on how to assess the element of bodily harm and returned a verdict of not guilty of the charge laid and guilty of the included offence of simple assault. It was agreed on the sentencing proceedings that the simple assault is integral to the offence of robbery (which embraces both instances of taking the phone) and is included in the guilty verdict on count 1. I accordingly directed that a conditional stay of proceedings be entered on count 5.
[17] On count 6, a charge of threatening to cause death, related to the remarks by Mr. Ahmed to the effect that he would kill Z.W. if she told anybody about the offences, the jury returned a verdict of guilty.
Whether the Rule Against Multiple Convictions Applies to Counts 2 and 4
[18] The jury returned verdicts of guilty on charges of extortion and sexual assault in respect of the non-consensual sexual contact between Mr. Ahmed and Z.W. in the park. Counsel for Mr. Ahmed invokes the rule against multiple convictions for the same delict to argue that only one of these findings should result in a conviction and that the other should be conditionally stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The Crown disagrees, arguing that there is not a sufficient legal and factual nexus between the conduct related to the two counts to support the staying of one of them. If I disagree with the Crown’s position on the entry of a stay, counsel argues that it is the extortion, not the sexual assault conviction, that should be stayed notwithstanding the greater maximum penalty available for the offence of extortion.
[19] The Kienapple principle was re-examined and refined by the Supreme Court of Canada in R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480 where it was explained by Dickson C.J. in a complex analysis that included the following, at paras 20-24, 31-34, and 39:
In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? As Côté demonstrates, however, it will not always be easy to define when one act ends and another begins. Not only are there peculiar problems associated with continuing offences, but there exists the possibility of achieving different answers to this question according to the degree of generality at which an act is defined: see Klinck, supra, at p. 292; Leonoff and Deutscher, supra, at p. 261; and Sheppard, supra, at p. 638. Such difficulties will have to be resolved on an individual basis as cases arise, having regard to factors such as the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events (such as the robbery conviction in Côté), and whether the accused's actions were related to each other by a common objective. In the meantime, it would be a mistake to emphasize the difficulties. In many cases, including the present appeal, it will be clear whether or not the charges are founded upon the same act.
The next question which must be addressed is whether the presence of a sufficient factual nexus is the only requirement which must be met in order to justify application of the Kienapple principle. Counsel for Sandra Prince refers in his factum to the Kienapple principle as one relating to multiple convictions for the same act. Similarly, Sheppard, in his early commentary on Kienapple, propounds a same transaction test for the rule against multiple convictions. Some courts, too, have referred to the "same act" or "same transaction" underlying two offences in terms which might suggest that that was sufficient to sustain the operation of the rule: see, for example, R. v. Boyce (1975), 1975 569 (ON CA), 23 C.C.C. (2d) 16 (Ont. C.A.), R. v. Allison (1983), 1983 3567 (ON CA), 33 C.R. (3d) 333 (Ont. C.A.) and Hagenlocher (Man. C.A.) [R. v. Hagenlocher (1981), 1981 3239 (MB CA), 65 C.C.C. (2d) 101, aff'd 1982 3914 (SCC), [1982] 2 S.C.R. 531].
In my opinion, the application of Kienapple is not so easily triggered. Once it has been established that there is a sufficient factual nexus between the charges, it remains to determine whether there is an adequate relationship between the offences themselves. The requirement of an adequate legal nexus is apparent from the use by the majority in Kienapple of the words "cause", "matter" or "delict" in lieu of "act" or "transaction" in defining the principle articulated in that case. More telling is the fact that Laskin J. went to considerable pains to discuss the legislative history of rape and carnal knowledge of a female under 14 years and to conclude that the offences were perceived as alternative charges when there was non‑consensual intercourse with a female under 14. I am not prepared to regard Laskin J.'s analysis in this regard as unnecessary or irrelevant to the outcome in Kienapple, which it would of course be if the rule against multiple convictions applied whenever there was a sufficient factual nexus between the charges.
In my opinion, the weight of authority since Kienapple also supports the proposition that there must be sufficient nexus between the offences charged to sustain the rule against multiple convictions. In a unanimous judgment in McKinney v. The Queen, 1980 164 (SCC), [1980] 1 S.C.R. 401, delivered orally by Laskin C.J., the Court saw no reason for interfering with a decision of the Manitoba Court of Appeal reported at (1979), 1979 2926 (MB CA), 46 C.C.C. (2d) 566. Although Kienapple was not referred to in the reasons of this Court, it had been argued in the Court of Appeal. McKinney and others were charged and convicted of hunting out of season and hunting at night with lights contrary to ss. 16(1) and 19(1), respectively, of the Wildlife Act, R.S.M. 1970, c. W140. Both charges arose out of the same hunting incident. O'Sullivan J.A. for the majority held that the case involved two "delicts". Monnin J.A., dissenting on another issue, said that hunting out of season and hunting with lights were two different "matters", totally separate one from the other and not alternative one to the other. The judges of the Court of Appeal all agreed that Kienapple was inapplicable. Thus, notwithstanding there was but a single act of hunting, there were distinct delicts, causes or matters which would sustain separate convictions.
Numerous other cases can be cited to illustrate that a single act of an accused can involve two or more delicts against society which bear little or no connection the one to the other. R. v. Logeman (1978), 1978 3916 (BC CA), 5 C.R. (3d) 219 (B.C.C.A.) involved charges of driving while suspended and impaired driving; R. v. Lecky (1978), 1978 2524 (NS SC), 42 C.C.C. (2d) 406 (N.S. Co. Ct.), contributing to juvenile delinquency and trafficking in a narcotic; R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65 (Nfld. C.A.), breach of recognizance and possession of a narcotic; R. v. Pinkerton (1979), 1979 2998 (BC CA), 46 C.C.C. (2d) 284 (B.C.C.A.), breach of probation and common assault; R. v. Père Jean Grégoire de la Trinité (1980), 1980 2902 (QC CA), 60 C.C.C. (2d) 542 (Que. C.A.), contempt of court and unlawfully detaining children. Notwithstanding that a single act of the accused appears in each of these cases to have given rise to two charges, Kienapple was held to be inapplicable. In my view, these cases were correctly decided. If an accused is guilty of several wrongs, there is no injustice in his or her record conforming to that reality. In short, I agree with the following remarks of Lambert J.A. in R. v. Harrison (1978), 1978 395 (BC CA), 7 C.R. (3d) 32 (B.C.C.A.), at p. 37:
It is not sufficient to consider the charges and to ask whether conviction on one will involve conviction on another. It is not sufficient to consider the facts and to ask whether only one act is involved. The facts and the charges must be considered together and in their relationship to each other.
There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions.
It has been a consistent theme in the jurisprudence from Quon, through Kienapple and Krug that the rule against multiple convictions in respect of the same cause, matter or delict is subject to an expression of Parliamentary intent that more than one conviction be entered when offences overlap: see, in particular, McGuigan v. The Queen, 1982 41 (SCC), [1982] 1 S.C.R. 284. In Krug, La Forest J. was careful to explain that the presence of additional, distinguishing elements was in itself an expression of such an intent. No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender's accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted.
I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are no distinct additional elements in the lesser offence. For example, in R. v. Loyer, 1978 194 (SCC), [1978] 2 S.C.R. 631, Kienapple was applied to bar convictions for possession of a weapon for the purpose of committing an offence when convictions were entered for the more serious offence of attempted armed robbery by use of a knife. Although the robbery charges contained the element of theft which distinguished them from the weapons charges, there were no elements in the weapons charges which were additional to or distinct from those in the robbery charges. Accordingly, it was appropriate for the Court to apply Kienapple to bar convictions on the lesser weapons charges rather than on the robbery charges.
I now turn briefly to the question of when an element of an offence sufficiently corresponds to another element so that it cannot be regarded as additional or distinct. When can it be said that elements are "substantially the same" or "alternative" the one to the other? This is a question which defies precise answers. Differences of degree are often important and, as La Forest J. has pointed out, abstract logic must be supplemented by an awareness of practical considerations in ascertaining Parliament's intention in creating different offences: Krug, supra, p. 269. Without purporting to be exhaustive, I believe that there are at least three ways in which sufficient correspondence between elements can be found, each of which is subject always to the manifestation of a legislative intent to increase punishment in the event that two or more offences overlap.
I emphasize that in applying the above criteria it is important not to carry logic so far as to frustrate the intent of Parliament or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges. For example, there exist offences aimed at a particular evil which (in certain circumstances) contain as an element the commission of some other offence directed toward an entirely different wrong. Such was the relationship between the offences in Lecky, Earle, Pinkerton and Père Jean Grégoire. In these cases, it could be argued, a substantive offence was subsumed by a greater, generic offence: Klinck, supra, at pp. 301‑02. To illustrate, the offence of breach of probation contains as an element the non‑compliance with a probation order which, as a matter of law, requires the accused to keep the peace and be of good behaviour: s. 663(2). The fact that breach of probation is an offence punishable by summary conviction (s. 666(1)) is a clear indication that Parliament cannot have intended a conviction for that offence to operate as a bar to a conviction for the substantive offence (which might attract a far more severe penalty) merely because the substantive offence might be regarded as a particularization of a failure to keep the peace and be of good behaviour. Plainly, breach of probation is an offence designed to protect the effective operation of the criminal justice system, a societal interest which is entirely different from that protected by an offence such as assault. Accordingly, Kienapple had no application in those four cases. [Emphasis added; headings omitted]
[20] In R. v. Davis, 1999 638 (SCC), [1999] 3 S.C.R. 759 at paras. 41-59, the Supreme Court held that the inducing of sexual contact by the means forbidden in s. 346(1) of the Criminal Code could constitute the offence of extortion. It concluded that the rule against multiple convictions did not bar convictions for extortion and sexual assault in that case, involving a man who threatened to expose intimate photographs of young women unless granted sexual favours by them. The Court said at para. 73:
In this appeal there is not a sufficient factual nexus between the extortion and sexual assault convictions to trigger the application of Kienapple. The convictions arise out of different factual transactions. Any one of the occasions over the two- to three month period in which the appellant engaged in sexual activity with P.V.B. is sufficient to ground the extortion conviction. By contrast, the sexual assault conviction arises from one or two specific occasions in which the complainant explicitly communicated her lack of consent to sexual contact. Since there are separate factual circumstances which give rise to the different convictions, Kienapple does not apply.
[21] Counsel for Mr. Ahmed cites the judgment of J. R. Henderson J. In R. v. Gigliotti, 2012 ONSC 1603, a case in which the accused coerced acts of intercourse and fellatio from his employee after discovering she had committed a minor theft at the workplace which he threatened to report to the police. Justice Henderson held, at paras. 18-27:
In the present case, clearly the acts of the accused with respect to sexual assault and extortion were very close in time and place. Both offences took place in Gigliotti's house and the sexual assault took place immediately after the extortion threat was made. In fact, the extortion offence was fully completed when Gigliotti commenced to have sexual intercourse with S.S., and the sexual assault commenced at that time with that same act.
Furthermore, when they were in Gigliotti’s bedroom, Gigliotti repeated his extortion threat on two further occasions during a time in which several sexual activities occurred. Thus, the acts of extortion were intertwined with the acts of sexual assault.
In addition, there were no intervening events and Gigliotti's actions in committing both offences related to the same common objective; i.e. obtaining sexual intercourse from S.S..
For all of these reasons, I find that there is a strong factual nexus between the two counts.
Regarding the legal nexus, I must determine whether there is a sufficient relationship between the two offences themselves. In this respect both the Kienapple case and the Prince case make it clear that the rule is broader than the simple prohibition of multiple convictions for the same offence. At para. 14 of Prince the Court, referring to the Kienapple decision, wrote, “…the application of the rule had to be framed not in terms of whether the offences charged were the “same offences” (or “included offences”), but in terms of whether the same “cause”, “matter” or “delict” was the foundation for both charges.”
In the Prince case at para. 32, the Court concluded that a sufficient legal nexus between the offences will be satisfied if there is no additional and distinguishing element in one offence that is not contained in the other offence. In a discussion of this concept at para. 34, the Court held that if the elements of one offence are substantially the same as or alternative to the elements of the other offence, then there is a sufficient legal nexus between the two offences. The Court went on at paras. 35 through 38 to describe three ways in which an element of one offence may be the same as or alternative to an element of another offence.
In general, the elements of sexual assault are quite different from the elements of extortion. However, it must be recognized that the extortion count here is particularized in the Indictment as extortion that induced S.S. into engaging in sexual intercourse and fellatio.
If I consider the extortion count first, I note that the Crown must prove that Gigliotti threatened S.S.; that he did so with intent to induce S.S. into sexual activity; and that S.S. was induced by the threat into sexual activity. Therefore, if the Crown proves all of the elements of this particular extortion count, the Crown will also have proved all of the elements of sexual assault. That is, the sexual assault count is subsumed in the extortion count. In this way all of the elements of sexual assault are included in the extortion count.
If I consider the sexual assault count first, I note that the act of extortion by Gigliotti essentially forms the lack of consent element of the sexual assault count. That is, where the particulars of the extortion include a threat that induces S.S. to engage in sexual activity, then the extortion vitiates S.S.’s consent to sexual activity. Thus, the elements of extortion are the same as or an alternative to the lack of consent element in the sexual assault count.
In summary, the elements of extortion are included in the sexual assault offence, and the elements of sexual assault are included in the extortion offence. Therefore, in this way, I find that the elements of extortion are substantially the same as the elements of sexual assault in the present case. I find that there is a sufficient legal nexus between the two counts. The two counts refer to the same matter, cause, or delict. [Emphasis added]
[22] Counsel for Mr. Ahmed relies on the close parallel between Gigliotti and the facts of the present case where a threat was made to coerce submission, despite the lack of consent by the complainant to sexual contact. The analysis is, in effect, that the accused has performed a wrongful act (a “delict”) by compelling the victim to submit to unwanted sexual contact through the leverage he acquired from possession of her phone. There is no reason why this act of coercion or dominance, to overcome resistance which might otherwise flow from a lack of consent, should result in two convictions when the exercise of physical force leading to sexual contact will generally result in a single conviction for sexual assault or, if it causes injury, sexual assault causing bodily harm.
[23] Crown counsel does not accept the logic of Gigliotti, arguing that there is not a legal nexus between extortion and sexual assault in cases of this nature and that each addresses a different “evil” or a different kind of misconduct. However, he focuses primarily on a factual distinction between the cases. He argues that when Mr. Ahmed initially withheld the stolen phone from Z.W., as she offered oral and manual sexual contact in exchange for its return, he knew that she was not consenting to any sexual contact. He also knew, however, that she was prepared to submit to the leverage the phone afforded him to the extent of performing oral and manual sexual activity to secure its return. Their exchange made clear that Z.W. was not willing, even in exchange for the phone, to submit to intercourse with Mr. Ahmed – she drew her boundaries explicitly in the conversation that preceded his departure to Queen Street for the condoms. When he failed to achieve sexual satisfaction from prolonged oral and manual stimulation, he gestured to her to assume a position on the ground for intercourse and he briefly penetrated her. This was, for him and for her, an act of physical domination outside the range of even the involuntary submission bargained for in the initial discussion. By the time this occurred, Z.W. had the phone in her personal possession and had made clear her unwillingness to engage in intercourse. Mr. Ahmed was, at this point, asserting his control over her, not over her phone, and both of them knew it.
[24] On this view, even if the close connection between the threat to keep the phone and the performance of fellatio could support an invocation of the Kienapple principle, the intercourse was a straightforward rape with the effect of the extortion spent and the coerced agreement it yielded no longer motivating either party. The intercourse was simply the product of a physically vulnerable woman dominated by a much more powerful man.
[25] I confess to finding the practical application of the Kienapple principle, as elaborated upon in detail in Prince, to be difficult to apply in particular cases. The series of pronouncements and exceptions to these pronouncements, supplemented by examples and counterexamples, in Prince may confuse rather than clarify when applied to particular facts and combinations of counts on an indictment. Yet the exercise is an important one insofar as it seeks to prevent a multiplicity of criminal convictions for what is, in substance, a single crossing of the line between lawful and criminal behaviour.
[26] The problem lies, in my view, largely in the fact that we speak of offences against the criminal law in the precise and categorical terms of “elements”, which seems to invite a rigorous application of legal logic to the determination of matters of nexus, overlap and identity among the legal constituents of an offence. But the exercise is inevitably overlaid with an attempt to serve the objectives of the law and realize the policy goals of Parliament, in cases arising from varied and non-analogous fact situations and a legal setting where some forms of misconduct are defined with great particularity and others in the most general of terms. What might seem like an exercise in matching bodies of evidence to legal definitions, in search of a legal and a factual nexus evolves into an exercise in ensuring that “multiple convictions are not without good reason heaped on an accused in respect of a single criminal delict”: Prince, para. 14. This, I believe, is why Chief Justice Dickson’s judgment in Prince emphasizes the difficulty in providing “precise answers” on key questions about the application of the rule while recognizing that “differences of degree are often important” and “abstract logic must be supplemented by an awareness of practical considerations in ascertaining Parliament's intention in creating different offences” (para. 34) and stresses that that “it is important not to carry logic so far as to frustrate the intent of Parliament or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges” (para. 39).
[27] For myself, treating Gigliotti firstly as though its essential facts were indistinguishable from those in the case before me, I am not convinced that the Kienapple principle should apply to prevent convictions for both extortion and sexual assault. One way of looking at the question is that a person seeking to secure sexual contact against the will of another person may commit all manner of wrongs to do so – fraud, threatening and extortion are three examples. Committing crime of sexual assault itself may often include commission of a forcible confinement. The same is broadly true of other areas where unlawful means are employed to obtain an unlawful object. I believe it should be acknowledged that with criteria as vague as “legal and factual nexus” employed to draw lines between offences that can be performed in a great number of different ways, in many varying circumstances, the conclusion that one of them is part of the “delict” and another is distinct from it and worthy of a separate conviction, is likely to involve a measure of judgment specific to the facts of each case on the part of judges attempting to make the determination.
[28] There is considerable appeal to an argument that where an offender chooses to perform a distinct criminal act— such as blackmail, in Gigliotti and in this case—to secure a victim’s submission to his desire for sexual contact, the objectives of Parliament are fostered, not frustrated, by entering convictions that reflect this choice.
[29] In the present case, I tend to favour the view that a person who makes a threat to retain a valuable item he has stolen to secure participation in sexual contact has performed a wrong distinct from the non-consensual sexual contact which follows and that such a wrong merits separate legal sanction. It is relevant, I think, that a sexual assault may be committed by conduct as brief and isolated as a quick fondling of a victim without their consent and with no wrongful act apart from the touching itself. When a known lack of consent is overcome by calculated methods definable as extortion, such as the threat to expose intimate photos in Davis, or to report a theft to the police in Gigliotti, or to withhold possession of a valued chattel in this case, the interests served by the Kienapple principle do not demand treating the added unlawful conduct as subsumed within the sexual assault itself.
[30] Justice Henderson concluded at paras. 25-26 of Gigliotti that the extortion was subsumed within the sexual assault because “the act of extortion by Gigliotti essentially forms the lack of consent of the sexual assault count” and that the “extortion vitiates S’s consent to sexual activity” (emphasis added). I believe, however, the law requires a different focus. Proof of consent or non-consent in cases of sexual assault turns entirely on the state of mind of the complainant, not the conduct, or the beliefs, of the defendant: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at paras. 24-30, 61. Equating the lack of consent of the complainant with the extortionate conduct of the accused to establish the effective identity of the two charges elides an important difference between extortion and sexual assault. In this case (and in Gigliotti) once it was accepted that the complainant was engaged in sexual conduct with the accused that she did not want to be engaged in, the actus reus of the offence was made out. How the accused overcame the resistance that the complainant’s lack of desire for the sexual contact might have prompted is a separate matter—and if it involved the commission of a separate crime, that crime is properly the subject of a separate conviction.
[31] I also do not think it is of importance that the indictment in Gigliotti, as in this case, included the allegation that the extortionate conduct induced the complainant into performing sexual acts. Identifying the identity or separateness of delicts is not a matter dependent on the pleadings but on the factual conduct proved and the legal treatment of it. Section 346(1) of the Criminal Code treats inducing and attempting to induce the doing of an act as equivalent and indistinguishable. The accused in both Gigliotti and this case could have been prosecuted for the wrongs they committed before sexual contact ever took place. That tends to support the argument that the wrongs are not identical or subsumed within each. This conclusion is not affected by the fact that, in both cases, the initial wrong (coercion) actually led to and facilitated the later wrong (non-consensual sexual contact).
[32] The facts of the present case highlight the separateness of the delicts. Mr. Ahmed robbed Z.W. of her phone. Aware of how much she prized it, from her yelling at him, he returned to speak with her. She raised sexual contact – oral and manual – as a possible basis for a deal to get the phone back, provided there was no intercourse and he used a condom. Mr. Ahmed left to acquire the condom. That conduct comprised everything he had to do to be guilty of extortion and he had the awareness to constitute the mens rea for the offence.
[33] He was gone for twenty minutes and came back with condoms. At that point, he placed his penis in the mouth of Z.W., touching her in circumstances of a sexual nature – the actus reus of sexual assault. He knew she did not want or consent to this conduct. The oral and manual contact that followed was a sexual assault, with all elements of that offence proven.
[34] No line of legal reasoning, no rule of law, and no policy interest inexorably determines whether the extortionate conduct, separated in time from the sexual contact – but used to achieve the sexual contact – should lead to a separate conviction. I am, however, inclined to the view that it should. The incident began with an act of extortion that was coercive, degrading and frightening to Z.W., as it would be to anybody. Mr. Ahmed had time to think about whether he would go further, by committing a sexual assault after securing his forced bargain, and he elected to do so. That his later sexual violation of Z.W. should be subsumed within his earlier act of coercion by threatening to keep her phone, so that in law the earlier behaviour was indistinguishable from the later, seems to me undesirable and unnecessary.
[35] I acknowledge that the fact that a sexual assault prosecution involving the use of force to overcome resistance or even gratuitous violence does not generally result in separate convictions for physical assault and sexual assault. I do not, however, think that any principle lies beneath this tendency in the case law or that it supports the position of Mr. Ahmed. It is partly a result of the word “assault” being imported into the description of the most common sexual offence and partly a result of a prosecutorial desire not to overcharge. Where offences such as forcible confinement or threatening are committed to aid in the commission of a sexual assault and are separately charged, they can be the subject of separate convictions even though they are woven tightly into the narrative of the wrongdoing: R. v. Anderson, 2011 ONSC 5551.
[36] While I am doubtful about the reasoning in Gigliotti, however, I do not need to consider whether I should depart from it despite the demands of horizontal stare decisis: R. v. Sullivan, 2022 SCC 19 at paras. 73-80. I am not clearly satisfied that it was wrongly decided in a legal setting where appellate authority is so difficult to apply. I do, however, conclude that this case is not on all fours with Gigliotti and that here the factual and legal nexuses between the extortion and sexual assault counts are too tenuous to support application of the Kienapple principle.
[37] In respect of the factual linkage, the sexual intercourse testified to by Z.W. was plainly not a product of or sequela to the extortion. It was explicitly a breach of the coerced “bargain” between Z.W. and Mr. Ahmed which resulted from his threat to retain the phone. The legal nexus is also absent. Looked at in terms of the approach in Gigliotti, discussed above, the earlier extortion by Mr. Ahmed did not “form the lack of consent” by Z.W. to engage in the intercourse. The intercourse was a departure from the agreement and from the expectations created by the extortion; it was no different in legal substance from a sexual assault in which a man directs a woman to get on the ground and penetrates her.
[38] For these reasons, without resolving whether the Kienapple principle could properly apply in a case of this nature broadly, I conclude that it does not apply to this case in particular.
[39] My conclusion on this point depends on a finding that Z.W. was truthful in her description of Mr. Ahmed forcing sexual intercourse on her after the oral and manual touching. This is a determination for me to make since a finding on this point was not necessarily inherent in the jury’s guilty verdict on the charge of sexual assault: R. v. Ferguson, 2008 SCC 6 at paras. 14-19. The standard of proof, in circumstances such as these, where a factual finding may determine the scope of liability or punishment, is proof beyond a reasonable doubt: R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368 at pp. 413-417.
[40] I have no doubt that the brief act of intercourse occurred, and that it happened without the consent of Z.W. Her general testimony was credible and corroborated. She did not include the sexual intercourse in her initial statement to the police but her explanation for that omission was also credible. Incremental disclosure is characteristic of many sexual assault cases and is not in itself grounds for disbelief of a complainant. In this case, Z.W.’s reluctance to disclose forced intercourse was believable in itself and consistent with the story she told about negotiating with Mr. Ahmed to avoid intercourse if she could get her phone back by performing other sexual acts.
[41] I cannot ascribe to Z.W. either the sophistication or calculation to invent an allegation of intercourse in order to elevate Mr. Ahmed’s culpability or ensure he could not get bail. Though Ms. Shillingford developed these themes with care and skill in cross-examination and argument, they do not ultimately raise or contribute to reasonable doubt on my part on the issue of intercourse having occurred. I find that it did.
[42] For these reasons, I concluded that a conditional stay of proceedings should not be entered on count 2 of the indictment, the charge of extortion, nor on count 4, the charge of sexual assault. Convictions have been entered on both counts.
Mr. Justice P. Campbell
Released: December 21, 2022
COURT FILE NO.: CR-21-70000083
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
MOHAMED AHMED
Defendant
Reasons for Decision on the Application of the Rule against Multiple Convictions
Mr. Justice P. Campbell
Released: December 21, 2022