COURT FILE NO.: CR39700-21-95 DATE: 2023-02-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – L.A.M. Defendant

COUNSEL: I. Blanchard, for the Crown M. Gauthier, for the Defendant

HEARD: December 5, 6, 7, 2022

REASONS FOR JUDGMENT

Justice H. Desormeau

Overview

[1] The accused and complainant were in an on-and-off relationship from approximately December 2018 until approximately February 2020.

[2] The accused stands charged with one count of assault on R.C. (s. 266 Criminal Code of Canada); one count of sexual assault on R.C. (s.271 Criminal Code of Canada); and one count of breach of probation for failing to keep the peace and be of good behaviour (s. 733.1 Criminal Code of Canada).

[3] The Crown called three witnesses: the complainant R.C., Detective Cst. Norman, and V.B.

[4] The accused testified.

[5] At the outset, there were admissions as to identity, date and jurisdiction. It was also admitted that the accused was bound by the probation order of Renaud J., dated May 2, 2019. Further, it was agreed that the statement by the accused to police was made voluntarily.

Background

[6] R.C. and the accused met at a wedding on November 23, 2018. The accused approached R.C. and said she was beautiful, and that she had a nice voice. R.C. had sung for the bride and groom. Afterward, the accused returned to her table and then left.

[7] Following this initial interaction, the accused and R.C. texted each other back-and-forth through Facebook messenger for two to three weeks. They kept planning to meet, but it did not immediately come to fruition. Their first encounter following the wedding was at the accused’s cottage. R.C. had attended the cottage for a couple of hours and returned the next day again. At that point, the parties were just starting to get to know each other.

[8] Eventually, their friendship evolved into a relationship. Theirs was a complicated relationship, riddled by frequent separations, almost every two weeks, followed by reconciliations. Their relationship ended in February 2020.

[9] According to R.C., the parties were engaged at Christmas in 2019. They had resided together for approximately 2.5 months from June to August 2019. The accused denied the parties ever lived together but agreed that R.C. left “stuff” at her place.

Presumption of Innocence, Burden of Proof and Reasonable Doubt

[10] Prior to addressing the allegations, I note that in assessing all the evidence, the court must examine the credibility of each witness and the reliability of their evidence.

[11] The starting point is that the accused is presumed to be innocent, unless and until the crown proves their guilt beyond a reasonable doubt. “Reasonable doubt is doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 30.

[12] In making findings of fact, I must apply the standard of proof beyond a reasonable doubt. A fact will not be found against the accused unless I am satisfied beyond a reasonable doubt of its existence.

[13] A criminal trial is not a credibility contest. Cases are not decided on which evidence is preferred, but whether based on the evidence as a whole, the crown is able to prove the guilt of the accused, beyond a reasonable doubt, on each alleged offence.

[14] I am instructed by the test set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R 742 regarding weighing the evidence of the accused and that of the crown:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[15] In R. v. J.H.S., 2008 SCC 30, the Supreme Court qualified the W(D) instruction with an additional prong, partly in recognition that a trier of fact “may believe some, none, or all of the testimony of any witness, including that of an accused” (para 10). This prong is that where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal (at paras 11-12).

[16] The W(D) instruction applies not to individual items of evidence but to essential elements of the offence. Despite its wording, it applies not only to the accused’s testimony but rather to the impact of all exculpatory evidence, in the context of all the evidence: R. v. C.L.Y., 2008 SCC 2 at paras 6 and 8; R. v. Dinardo, 2008 SCC 24 at para 23; R. v. D( B), 2011 ONCA 51 at paras 105-114; R. v. Ryon, 2019 ABCA 36 at paras 29-30 and 49.

[17] It is not enough to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof beyond a reasonable doubt. While the crown need not prove the offence to a standard of absolute certainty, if the court is not sure that the accused committed an offence, then they should be found not guilty.

[18] Credibility determinations must be made on the beyond a reasonable doubt standard.

[19] In assessing credibility of any witness, including the accused, the existence of evidence which contradicts the witness is obviously highly relevant: R. v. Jaura, [2006] O.J. No. 4157, at para. 13. Every witness’s credibility and evidence must be considered in the context of the evidence as a whole: R. v. Jaura, ibid.

[20] The accused has previously been convicted of criminal offences. The court cannot use the fact that the accused has committed a crime in the past as evidence that she committed the crimes charged. The court can only consider the nature of the convictions to help decide how much or how little of the accused’s testimony my be relied on up. For instance, crimes of dishonesty may be more significant than others. The court must also consider whether the convictions are dated in time. A previous conviction does not make the accused’s evidence unbelievable or unreliable, it is but one of many factors the court must consider.

[21] Here, the accused admitted to having a criminal record which started when she was 42 years old and related directly to drug use. At trial, she was 59 years old. On her criminal record were crimes of dishonesty, such as obstruction of a peace officer, and public mischief.

Issue 1 - Assault

R.C.’s evidence

[22] R.C. testified that in July 2019, the parties had been going through one of their separations. R.C. had continued to reside in the accused’s apartment but had been sleeping on the couch for a couple of days as she had nowhere else to live. She disagreed with the accused’s evidence that she had no idea R.C. had been in the house, or that there was no couch in the residence.

[23] At around 10:00 p.m., R.C. went to sleep in the accused’s bed. She placed several pillows between herself and the accused as they were separated. Contrary to the accused’s evidence, R.C. maintained the accused was awake at the time R.C. crawled into bed.

[24] The accused told R.C. that if she was sleeping in her bed, the pillows could not be between them. The accused proceeded to remove all the pillows. A fight ensued. The accused told R.C. that she could not sleep in her bed if she was not planning on having sex with her. At this time, the accused was on her back, she rolled over, and looked at R.C.

[25] The accused asked what R.C. would do if she were to kick her out of the bed. At that time, with R.C.’s back to the accused, the accused kicked R.C. in the back and out of the bed. R.C. felt the accused’s feet on her back and was kicked with sufficient force that she fell out of bed onto the floor.

[26] After the incident, as she had no other place to go, R.C. returned to the couch. R.C. explained that the place where she had resided with her children was being sold, and so her children were living in a two-bedroom home. She eventually found a place to live on August 1st, 2019.

[27] As a result of the assault, R.C. had a bruise on her back and one on her knee. While she had not taken any pictures, at one point she was at her friend V.B.’s home and while lifting her shirt to scratch her back, V.B. observed a bruise and asked what had happened. She disagreed with the suggestion that V.B. would have seen bruises on her stomach, maintaining they were on her back.

[28] Following this incident, the parties resumed their relationship several times, with break-ups smattered throughout, ranging from one week up to a month.

V.B.’s Evidence

[29] V.B. testified that she had known and been friends with R.C. for about 13 or 14 years. While she spoke to police in 2020, she did not give a statement at that time, indicating she was afraid of the accused, and feared the accused would come after herself or her family. She only attended the trial due to having been served a subpoena. She confirmed that the basis of her fear was not personal experience, but from what R.C. had told her.

[30] About two years prior to testifying, on a warm day, while sitting outside, R.C. lifted her shirt to show V.B. and another friend bruises which the accused had caused by hitting her. V.B. could not recall which side the bruises were on, but stood and pointed toward her rib cage area, not quite the middle but toward the front side of her rib cage. She believed the marks looked like punch or kick marks.

[31] R.C. would have been shaken up and afraid of the accused at that time.

Detective Norman’s Evidence

[32] Detective Norman testified to speaking to V.B. in May 2020, who indicated that in the summer of 2018, V.B. saw bruises on R.C.’s “side tummy”, which the detective took to be the rib cage area.

The Accused’s Evidence

[33] In July 2019, the parties were still dating. On the night in question, the accused went to bed at 8:00 p.m. as she gets up at 5:00 a.m. Sometime in the middle of the night, R.C. came in, and the accused did not know it was her. The accused had only taken possession of the house on Gloucester Street in Cornwall a few days prior, and the house was empty. There was no furniture, no couch, table or chairs – only an air mattress. R.C. had moved things into the home without the accused knowing about it, including a dresser and garbage bag of clothes. The accused testified it looked like R.C. was planning to move in with her.

[34] The accused had been dead asleep when R.C. crawled into the bed. She recalled waking up as she was asleep on an air mattress and could feel the added weight on the bed. The accused lashed out as she was afraid, having thought she locked the doors before going to sleep. She recalled having two pillows on the bed.

Assault: Has the crown proven beyond a reasonable doubt the allegation of assault?

[35] To prove an assault pursuant to section 266 Criminal Code of Canada, the crown must prove beyond a reasonable doubt, pursuant to section 265 Criminal Code of Canada, that without the consent of the complainant, the accused applied force intentionally to the complainant, directly or indirectly.

[36] Even minor touching may effect an assault, if done in an angry, revengeful, rude, or insolent manner: R. v. Burden, 1981 CarswellBC 614, 25 C.R. (3d) 283, 64 C.C.C. (2d) 68 (B.C. C.A.); R. v. C. (M.W.), 2002 CarswellNS 505, 8 C.R. (6th) 379, 2002 NSCA 161 (N.S. C.A.); R. v. Z. (A.), 2000 CarswellOnt 4123, 137 O.A.C. 385 (Ont. C.A.).

[37] The application of force must have been intentional, not an accident or honest mistake: R. v. D. (M.), 2010 BCCA 162.

[38] As directed by W.D., I must first assess whether I believe the evidence of the accused, which would lead to an acquittal. Second, if I do not believe the testimony of the accused, but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Finally, recognizing I can believe some, none or all the testimony of any witness, including the accused, if I am unable to decide whom to believe, the accused is entitled to an acquittal.

[39] I find that there are several inconsistencies in the evidence, such as whether the complainant had been sleeping on the couch or if there was even a couch in the home where the complainant could have slept. The accused remained consistent in her evidence that there was no furniture in the home, just as the complainant remained consistent in her evidence regarding the couch and furnishings.

[40] The complainant was adamant that her bruises were on her back and her knee, after having been kicked out of bed, in the back, by the accused. The complainant’s evidence was that V.B. would have seen the bruises by accident when she lifted her shirt to scratch her back. V.B.’s evidence was that the complainant lifted her shirt to show her and a friend the bruises as a result of what the accused had done to her. V.B.’s evidence was that the bruises were on the front rib cage area.

[41] I am concerned about the reliability of the accused’s evidence as to the residences in which she resided and knowing in which home this alleged incident would have occurred. I am of the view that she has some memory issues which affect the reliability of some of her evidence.

[42] The accused’s evidence was that she felt someone crawl into her bed with her, feeling the added weight on the air mattress. There was no couch for R.C. to sleep on, and the house was supposed to be empty. The accused testified that she lashed out as she was afraid.

[43] I have assessed the credibility and reliability of the evidence including the internal and external inconsistencies and looked at the evidence as a whole - noting that this is not a credibility contest.

[44] I am alert to the possible credibility issues which stem from prior crimes of dishonesty. However, these are but one of many factors to consider.

[45] I am troubled by the credibility and reliability of the complainants’ evidence on this allegation. Specifically, she was adamant as to where the bruises were located, but this evidence which was contradicted by V.B.

[46] Considering all the evidence and applying W.D., I believe the accused’s evidence. I am of the view that the accused’s actions were reflexive ones.

[47] As set out in R. v. Feng, 2020 ONCJ 593, reflexive actions or reactions are “best viewed along a continuum with differing legal consequences at each waypoint. That continuum runs from autonomic physiological reflex to unconscious reaction to considered reprisal. Where the action of the accused is purely an electrochemical response to external stimulus, it is an involuntary reflex that fails to engage the actus reus of the offence. Where the action of the accused is an immediate reaction taken without consideration or conscious thought it is an unintended application of force that fails to engage the mens rea of the offence.” (at para. 37).

[48] I am persuaded that the accused’s actions were an immediate reaction taken without consideration or conscious thought, therefore the mens rea of the offence is not established.

[49] As such, I find her not guilty of this offence.

Issue 2: Sexual assault

R.C.’s evidence

[50] As noted above, the parties had broken up in February 2020 for the final time.

[51] However, on March 1, 2020, R.C. was at the Glengarian bar in Cornwall with her friends. She and the accused had been texting each other back and forth and talking on the phone.

[52] One set of messages were exchanged between the parties prior to the alleged sexual assault taking place. R.C.’s evidence was that the messages were supplemented by telephone conversations in between. R.C. messaged the accused at about 1:00 a.m. on March 1, 2020, indicating she “might need bail money bats are getting lonely and I need to hit someone.” The accused replied “lol. Still love you ... night” “always a place for you next to me.” R.C. messaged “two guys trying to pick me up someone is getting a bat across the face”. The accused remarked R.C. was at a bar. A few messages later, R.C. sent “think I need to hhhmmm fuck” “hhhmmm thought you would jump on that” “hhhhmmm”, “Guess I’ll go home”. The accused answered with an invitation that R.C. come over to her house.

[53] R.C. testified that the above messages were because of R.C. and her friends were being propositioned by the two guys at the bar. She said that “I need to hhhmmm fuck” and “thought you would jump on that” were statements made to her by the men at the bar, not statements she was advancing toward the accused. She maintained that she did not use the word “fuck” in her usual vocabulary, that word stemmed from what the men at the bar were saying to her. R.C. denied going to the accused’s house with the intention of having sex with the accused and denied changing her story following the records application which was required to obtain the messages pre-dating the alleged sexual assault.

[54] Contrary to her KGB statement, at trial R.C. denied going over to the accused’s house due to the accused saying she loved her, but instead it was because she was being harassed at the bar.

[55] The accused invited R.C. over to her house on Sixth Street East in Cornwall, knowing that R.C. was upset. R.C. arrived at about 1:30 a.m. The accused owned the home but she rented out rooms to four other people.

[56] When R.C. arrived, she and the accused started fighting about one of the accused’s employees, who was also one of the accused’s ex-partners, M. It was not a long argument as R.C. was tired and did not feel like arguing any more, so she went to bed. The accused also rolled over and they both went to sleep. They each slept for a couple of hours.

[57] According to R.C., during the night the accused kept rolling over, pulling down R.C.’s underwear, and putting her finger inside of her. After several times of R.C. telling the accused “no”, eventually the accused stopped, and they both fell asleep.

[58] The next morning, at about 8:00 a.m., R.C. went to bathroom, and then went back to bed. R.C. was wearing her underwear and a tank top. R.C. was still too tired to drive home, so she returned to bed, but not with the intention of having sex. While in bed, the fight from the night prior resumed. R.C. told the accused that she and M. were “nothing but losers.”

[59] The accused rolled R.C. over and asked her to repeat what she had said. A terrible look came across the accused’s face. While R.C. was on her back, the accused tried to kiss her and lick her teeth. The accused then climbed on top of R.C. to try to kiss her. R.C. kept turning her head back and forth, turning her face away from being kissed.

[60] The accused then grabbed R.C.’s hands, put them over top of her head, and tied them up with a long, black rope that had been on each side of the floor of the bed, running under the bed, around and under the mattress and came up near the headboard. There were velcro-type handcuffs attached to the rope. The accused pulled the rope through the headboard and tied R.C.’s hands, individually, with the handcuffs while she tried to kiss her. Using big knots, the accused tied the rope and put R.C.’s hands over her head. R.C. tried to resist but the accused was on top of her. She asked the accused not to tie her hands, and the accused did not respond, nor did she stop.

[61] The accused then commented to herself about being stupid for forgetting to remove R.C.’s shirt before tying her up. The accused pulled the shirt up over R.C.’s shoulders. She started sucking on R.C.’s nipples, saying “they” wanted her, why doesn’t R.C. want her. R.C. threatened to yell “rape”, and the accused said to go ahead, it was her house. R.C. told the accused that if she was going to do this to her, to close the door as there were a lot of people living in that house who wandered throughout the house. The room was right beside the front door. Without getting out of bed, using her foot, the accused closed the door. R.C. admittedly did not yell for help.

[62] The accused tried to pry R.C.’s legs open and remove her underwear. R.C. resisted for about five minutes, until her legs gave out and she could no longer hold them together. The accused pulled R.C.’s legs apart. The accused told R.C. she knew she wanted this and asked to put her tongue inside of her. The accused inserted both her tongue and fingers inside of R.C.’s vagina, asking R.C to “move” sexually. R.C. was crying and she just laid there, not moving.

[63] At this point, the accused noticed R.C. was crying. She untied R.C.’s hands, threw a blanket over her and left the room.

[64] The accused returned, having made R.C. eggs for breakfast. R.C. did not eat any, and the accused said “oh, you’re not talking to me now and you’re not eating, fine- I’m taking it to my mom’s”, and left. R.C. stayed in the bedroom until about five minutes after the accused left. While leaving, R.C. saw the accused parked next door, at her aunt’s house. The accused’s mother resided around the corner on Fifth Street. The accused was standing beside her truck when R.C. exited the house. R.C. got into her car and left without speaking to the accused.

[65] R.C. testified she felt “destroyed” because she had trusted the accused.

[66] R.C. denied smiling, laughing or joking during the assault, she was crying. She denied that the event was initially consensual. The encounter lasted about 20 minutes, which resulted in bruises on her legs where the accused had pried them open.

[67] Several text messages and emails were exchanged following these alleged incidents, with a summary as follows:

[68] On March 1, 2020, following the alleged sexual assault, the messages resumed at about 9:30 a.m., where R.C. wrote “Key on fireplace”, “Glad to know being her friend means more to you then our relationship”. The accused confirmed the key was found in the mailbox and texted “our last night together will never be forgotten”. R.C. responded “Right” “Good answer ducking”, to which the accused replied “I’ll live”. R.C. texted “And her”, the accused replied “So will you”. R.C. texted “Bitch”. The accused wrote “No me. I’m no bitch. I’m just erasing you from my life. No choice. I love you. But I need to forget you.” R.C. responded “Clearly your relationship with your ex means more to you then our relationship so yes please erase me from your life. Lessoned learned.”

[69] On March 2, 2020, the accused wrote to R.C. that she was up all-night listening for R.C.’s car in case she showed up in the middle of the night, that her door was not locked if she changed her mind.

[70] On March 3, 2020, the accused indicated she was leaving R.C.’s engagement ring at her aunt’s house and should R.C. leave hers, the accused will never contact R.C. again. R.C. responded “do you think what u did to me Sunday morning was ok cause I need to know”. The accused responded “I wanted you. I stopped because you were crying. I made Breakfast and you didn’t eat it so I brought it to mom. I came back and you left. Were did I go wrong?” R.C. replied “I said no several times”. The accused typed “holy”. R.C. then indicated “no holy from the time u started I said no u just continued.” The accused responded “I see. I’ll never touch you again and I’m sorry that you took it as you did” R.C. replied “No u won’t”. The accused messaged “Don’t worry. It won’t happen again. Every”[sic], “You could have meant it. It you didn’t. Yoh let me so I went on. If you wanted to stop me you could have. Easily. Bye”… R.C. replied “you tied me up when I said no and then forced my legs open I have bruises on my legs from u doing that I am so disgusted how could u have done that. Why I said no.” The accused then messaged “Wow”, “You’re fucked”, “You’re demented”. The accused maintained she did not force R.C. and indicated “you could have stopped me at any time. You did before so don’t duck with my head. You loser”. R.C. responded “Couldn’t after you tied my hands and I tried before that asked you and you would just kept saying but your nipples want me and I want to put my tongue in u” “You’re the loser fuck off”.

[71] On March 19, 2020, at 10:06 a.m., the accused emailed R.C. [To: “pure evil [R.C.]”]:

Look I swear I would never have hurt you on purpose. I thought you were ok with it. I honestly thought you were fine. I would never have continued if I thought I was hurting you. I swear it. I wanted to pleasure you, that was all. I stopped when I thought you weren’t enjoying it. So I thought I’d make you breakfast in bed instead. Maybe you’d enjoy that. You can’t [come] to my house in the middle of the night, drunk. You said no to me because you were angry. I respected that and slept beside you. I thought in the morning things had changed and you weren’t angry any more. Christ [R.C.] I would never intentionally hurt you. And when you accused me of raping you I felt I should stay away or you’ll end up putting me in jail one day. I fear the anger in you. I think you could be hateful and mean when you’re angry and that’s scary. …

[72] March 19, 2020, at 10:51 a.m., the accused wrote to R.C.:

Look. Every day since then I’ve been destroyed thinking about it. Thinking about how it affected you and you would say that to me so I’ve stayed away. The thought of someone forcing themselves on me sickens me. The thought of it happening to yoh [sic] has always sickened me. Now you’ve accused me of raping you and the thought of it makes me sick. I don’t want to hurt you or interfere with your enjoyment of life in any way. I just want to be able to talk to you.

I wasn’t being mean or angry or rough. I thought I was being playful. And I thought when I got a smile and laugh out of you, that it was a sign to carry on. I took my cues from you and I’m truly very sorry if that wasn’t whet [sic] you wanted. When I thought you were no longer having fun I stopped immediately. You should have told me right away what you were feeling. Instead I get a text a day later full of hate and anger, telling me whst [sic] I did to you. I could no longer hold you or hug you or touch you, because now I’m the rapist.

Now this. I thought my relationship with [M] was a pretty big hurdle to overcome but I thought we’d get through it. I never thought otherwise.

[73] On March 20, 2020, the accused wrote to R.C.:

Why don’t you just kill me? Inflicting the maximum amount of pain and suffering isn’t enough for you is it? You’d actively set out to destroy me because you’re angry? Nothing I ever did to you was deliberate or calculated and I’ve kept to myself and waited hoping you’d rethink that last morning and talk to me don’t you even realize the moment I saw you getting upset I stopped? It went from cute and funny to you getting upset very quickly but I stopped the very moment you got upset. I feel awful that I triggered something in you that day but [R.C.] you must have known me well enough to know you were safe with me. You came to my home any times drunk an I’ve never caused you harm. You were drunk and angry. And told me to dump [M] as a friend. Will you talk to me today?

[74] On March 22, 2020, the accused wrote to R.C.

You need to understand they [sic] I didn’t realize I was causing you trauma. I wasn’t being rough or mean, nor did I restrain you in any way they [sic] you couldn’t get out of. As soon as your manner changed I immediately stopped everything I was dong politely left you to regain your composure. I made waffles. You didn’t start out of hurt of angry. [sic]

So did I actually do something to you? Or did I do something that you were hurt by? Or did you blow it out of proportion. Knowing that I left you alone the night before because you were obviously very angry at me and then not so angry the next morning. Yet not even remotely willing to give me the benefit of the doubt. I tried to explain myself. My perception. People [sic] perceptions differ. We saw it differently and that’s all. I didn’t assault you or abuse you. In my mind and perception, you were ok. In your mind, well I didn’t know your feelings had changed.

You never gave me a chance. You never gave us the opportunity to deal with it. We never talked about any of it. The night before. We need to work other things out. Then I [sic] went to shit.

[75] On March 22, 2020, in an email change between the accused and R.C., R.C. said “you know exactly what u did”. In response, the accused wrote:

Yes? I remember it. I stuck my tongue on your teeth and gums and you laughed said if [sic] was gross. I laughed too. I tried to pry your legs apart but you were too strong and I told you I needed you to give in a little. And you did and for a minute we were okay…. Then we weren’t. And so I stopped and left the room because you were upset. I never thought I triggered something. I thought you were mad still, so I went to do something else.

[76] On March 24, 2020, there were messages about M., and the accused feeling bullied in having to choose between her friend and the complainant. The accused indicated that R.C. liked to get “even” to “get” people, and that R.C. was seeking revenge on the accused.

[77] When asked why the first messages to the accused were about the ex-partner, and not the sexual assault, R.C. testified it was because they were fighting about M. As to why the alleged sexual assault was not mentioned until later, R.C.’s evidence was that she was upset about it all happening and she wanted to walk away from the accused. She went on to state that she had cried for days due to the assault.

[78] R.C. testified regarding a “routine” the couple had when arguing. The concept of “routine” was not advanced in any impermissible 276 fashion. I have as such disabused myself of any evidence which runs contrary to the s. 276 regime.

L.A.M.’s evidence

[79] At the time of the alleged sexual assault, the accused and R.C. were not a couple. It had been over a week since they had spoken. The accused described being asleep when the complainant had been messaging her, but was woken by the phone going off at around 1:00 a.m. She indicated that based on their messages, she believed R.C. was “horny” and wanted to “come over” to have sex.

[80] When the complainant attended, it was clear she had been drinking. The accused went out and opened the door to her house, and there was a man with the complainant, who R.C. said she had picked up at the bar.

[81] R.C. entered the house and went into the bedroom. She noticed the accused’s laundry had been done by her ex-partner, M. This caused R.C. to become angry and tell the accused “you’re not touching me tonight because you talked to [M].” R.C. then went to bed and they slept until morning.

[82] The accused woke up between 5:00 a.m. and 6:00 a.m. and things were much better with R.C., she thought R.C. was over the issue as she was no longer angry. They were laying in bed together, giggling, laughing and things were playful. They were cuddling and the complainant wiggled closer. They started kissing, then R.C. “kinda pushed me away – said no” in a sing-song voice while giggling. They then started kissing more heatedly, they were French kissing, and the complainant got closer. The complainant laughed and then the accused laughed, they were in a good place.

[83] The accused denied using handcuffs or tying up the complainant. Thereafter she testified that R.C. had purchased a little kit with ribbon loops on them, for pretend bondage. The accused held the loop and R.C. put her hand in, thus consenting to using the cuffs. She described that when you pull down, the straps tighten, but when an arm lifts, the cuffs loosen as a safety mechanism.

[84] After R.C was in cuffs, she started wiggling, moaning, and groaning. R.C. started kissing the accused and was kissed back. They started to get into it. R.C. thrust her hips at the accused, lifted her body, and thrust out her breasts and hips. The accused started going down her body. They were laughing, giggling and playful. They accused did not recall what exactly either of them said, just that she had said something along the lines of “don’t crush me”. R.C. had laughed. The complainant was moving and moaning, making pleasant sounds.

[85] R.C. was being playful, “it wasn’t like she was ‘oh help, don’t do this’. We were relaxed, kissing, smiling.”

[86] A minute or two later, it got quiet. The accused was kissing the complainant below her belly button, and when she looked up, the complainant was crying. From the time the complainant was upset to the time the accused realised it, it had only been a matter of seconds. The accused asked if there was something bothering her, and the complainant shook her head. The accused then asked if what was bothering her was the accused’s ex, and the complainant nodded. The accused said, “I can’t do this”, stopped kissing her, stopped all activity, and left the room.

[87] Upon leaving the room, the accused did her morning routing, which consisted of feeding her mother and aunt. She went to grab a plate of waffles for her mother and left. She texted for the complainant to leave her keys on the fireplace on her way out. In cross-examination, the accused indicated she offered the complainant “breakfast in bed”, but R.C. refused to eat it, so she brought that portion of food to her mother.

[88] After leaving the room, the complainant got dressed. The accused waited in her aunt’s driveway next door until the complainant left because she did not want a confrontation or to talk to her anymore. Later that day the accused packed up all the complainants’ belongings and asked the complainant not to come by without an escort. She was not about to let the complainant tell her who she could see or talk to.

[89] In cross-examination, the accused admitted to having left out the part where she had to pry open the complainant’s legs, though her evidence was this was not done forcefully or in anger and did not leave bruises. She explained “prying” was a poor choice of words, but she was talking fast while using dictation for her message to the complainant. She reiterated it was not forceful, that it was done in fun, and they were both laughing at the time, and the complainant had been moaning and groaning. It was put to her that in the email, the accused said she was trying to pry the complainants’ legs apart, but the complainant was too strong. The accused testified when she stopped, R.C. opened her legs, that there was no way she was able to open the complainants’ legs, who was a PSW and hockey player. She said, “her legs are strong, there’s no way she would do things if she didn’t want me to.” The accused denied using strong “muscular” force. The accused then explained it was an oversight that she did not mention this in direct examination and it was not a big deal unless the crown made it a big deal, “you can’t twist things like this.”

[90] The accused also confirmed at one-point R.C. was saying “no, no”, to which the accused asked “yes, yes?” R.C. had pulled her head aside at the beginning, maybe the first ten seconds, then she kissed the accused back. She testified that the night before, when the complainant said no, she meant no. In the morning, she was pretty sure she meant yes when she said yes. The accused also indicated that when the complainant was saying “no, no, no”, the accused put her tongue between R.C.’s teeth, which made her giggle, thus breaking the ice. The complainant was “fun, playful” and was not crying or upset.

[91] When the accused left the house, she either texted or called the complainant to leave the keys on the fireplace, which is why the complainant texted that in the morning. The accused also asked the complainant to return her ring.

[92] The accused described owning four houses, three being in Cornwall. At the time of this alleged event, the accused was residing on Sixth Street.

Question 1: Has the actus reus for the sexual assault been proven by the crown beyond a reasonable doubt?

[93] Section 271 Criminal Code of Canada requires the crown to prove beyond a reasonable doubt, that the accused touched the complainant in a sexual manner, directly or indirectly, without the complainant’s consent.

[94] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that she had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of, or wilfully blind to, a lack of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 23. Both the actus reus and the mens rea of the offence need to be proven beyond a reasonable doubt.

[95] The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. See: R. v. Ewanchuk, [1999] 1 SCR 330 at para 25; R. v. JA, 2011 SCC 28 at para 23; R. v. Barton (SCC), 2019 SCC 33 at para 87; R. v. GF, 2021 SCC 20 at para 25.

[96] The first two of these elements are objective. It is sufficient for the crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: See R. v. Litchfield, [1993] 4 S.C.R. 333 (S.C.C.), R. v. Chase, [1987] 2 S.C.R. 293 (S.C.C.); and Ewanchuk, at para. 25.

[97] The absence of consent element is determined subjectively, by reference to the complainant’s internal state of mind toward the touching at the time it occurred: Ewanchuk, at para 26; JA, at para 34; Barton (SCC), at para 88. The question to be answered for purposes of this element of the offence is whether “the complainant in her mind wanted the sexual touching to take place”: Ewanchuk, at para 48; Barton (SCC), at para 89. The focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant at this stage of the analysis: Ewanchuk, at para 30. See also R. v. Kirkpatrick, 2022 SCC 33 at paras 28 and 50.

[98] Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence beyond a reasonable doubt, then there was no consent and this element of the offence is proven: Ewanchuk, at para 31; Barton (SCC), at para 89. “[T]he complainant’s reasons for granting or withholding consent […] are not relevant”: Kirkpatrick, at para 51.

[99] In GF, the Supreme Court of Canada observed that “there are two aspects to the overarching concept of consent” (para 31) and provided guidance on how they are to be analyzed: (1) The first aspect is termed “subjective consent” and “relates to the factual findings of the trier of fact about whether the complainant subjectively and voluntarily agreed to the sexual activity in question. If the trier of fact finds that there was no such agreement, the actus reus of sexual assault will be established”: GF, at paras 31-33.

[100] The second aspect of consent is termed “effective consent” and concerns whether any subjective consent given is “effective ‘as a matter of law’” […]. Another way of framing that question is to ask whether the subjective consent has been vitiated”: GF, at paras 33-34. The Supreme Court in GF made clear that “[o]nly if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go on and ask whether that consent was vitiated”: para 53; see also paras 4 and 33. However, triers of fact are not beholden to “a strict order-of-operations” when considering both aspects of consent. “While it may usually make analytical sense to consider subjective consent first and legal effectiveness second, a trial judge will not necessarily err if they do not follow this order”: para 52. See also Kirkpatrick, supra at para 34.

[101] The Criminal Code of Canada at sections 273.1 and 273.2 address the meaning of consent.

[102] It is important to note that there is no requirement on the complainant to express her lack of consent, or to express a revocation of consent for the actus reus to be established: A.(J.), at para. 37.

[103] Whether the complainant subjectively consented in her mind at the relevant time is a question of fact. Evidence on this issue may include the complainant’s direct evidence as to her state of mind at the time or other relevant evidence, including evidence of the complainant’s “words or actions, before and during the incident” See Ewanchuk, at paras 29-30; and Barton (SCC), at para 89.

[104] Further, consent cannot be implied by a complainant’s “silence, passivity or ambiguous conduct”: Ewanchuk, at para 51. There is no requirement that a victim offer “some minimal word or gesture of objection” in order to be found not to have consented: R. v. MLM, [1994] 2 SCR 3; see also JA, at para 37.

[105] The complainant’s testimony is the only direct source evidence as to her state of mind, but her credibility must be assessed considering all the evidence at trial, including any ambiguous or contradictory conduct of the complainant. (See Ewanchuk, paras. 30 and 61).

[106] As set out in R. v. D (D), 2000 SCC 43 there is no inviolable rule about how people who are victims of trauma like a sexual assault will behave. There is no normal way to react to a sexual assault. Some will make an immediate complaint, some will delay in disclosing, while some will never disclose. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complaint, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Analysis

[107] It was not contested that there was touching of a sexual nature. The question was whether there was an absence of consent by the complainant, based on her internal state of mind. The accused’s perception of the complainant’s state of mind is irrelevant.

[108] The evidence established that at the time of the incident, the complainant’s subjective internal state of mind was that she was objecting or in opposition to the activity occurring. I found the complainant’s evidence credible.

[109] Considering the evidence as a whole, I find that the actus reus has been made out beyond a reasonable doubt.

Question 2: Has the crown proved beyond a reasonable doubt the mens rea of the offence?

[110] The mens rea of sexual assault comprises two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched (Ewanchuk at para 42; JA, at para 24; Barton (SCC), at para 87; GF, at para 25; Kirkpatrick, at para 28).

[111] Because sexual assault is a crime of general intent, “the crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement” of intention to touch: Ewanchuk, at para 41, R. c. Daviault, [1994] 3 S.C.R. 63 (S.C.C.). The crown must prove beyond a reasonable doubt that the accused either knew the complainant was not consenting or was willfully blind or reckless as to her lack of consent.

[112] The meaning of consent in the actus reus portion of the analysis is different than in the mens rea analysis: A.(J.), at para. 37; Ewanchuk, at paras. 48 to 49. As set out in A.(J.), “[u]nder the mens rea defence, the issue is whether the accused believed that the complainant communicated consent.” [emphasis in original]

[113] The Supreme Court of Canada indicates that the accused may raise the defence of honest but mistaken belief in communicated consent if (s)he believed that the complainant communicated her consent to engage in the sexual activity. Barton (SCC), adopts the wording in Ewanchuk that consent means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (See Barton (SCC), para. 90; Ewanchuk, para. 49) The attention shifts from the complainant’s state of mind in this analysis to the accused’s mental state to determine whether (s)he “honestly believed the complainant effectively said ‘yes’ through her words and/or actions”: Barton (SCC), para. 90; Ewanchuk, para. 47, and GF, at para. 25.

[114] The relevant question for purposes of this defence of honest but mistaken belief of communicated consent is: did the accused honestly believe that the complainant effectively said ‘yes’ through her words and/or actions? (Barton (SCC), at para 90, citing Ewanchuk, at para 47).

[115] Essentially, honest but mistaken belief in communicated consent is a claim that the accused committed the actus reus of the offence while “mistakenly perceiving facts that negate, or raise a reasonable doubt about, the fault element”: Barton (SCC), at para 95. This defence arises only once the trier of fact is satisfied that the actus reus of the offence has been made out beyond a reasonable doubt; recall that the actus reus includes the complainant’s subjective lack of consent: R. v. Davis, [1999] 3 SCR 759 at para 81; see also Kirkpatrick at para 102.

[116] In this case, the accused advanced that R.C. consented to the sexual activity by her movements and engagement in the activity. As set out in L.S., at para. 39: If an accused argues that he had a belief, albeit mistaken, that the complainant consented to the sexual activity, the accused is in effect arguing that the crown has failed to prove the knowledge requirement beyond a reasonable doubt. If that doubt is said to be based on the accused's honest belief in consent, the accused must show that he took "reasonable steps" to "ascertain that the complainant was consenting": R. v. L.S., 2017 ONCA 685, at para. 39.

[117] Section 273.2 Criminal Code of Canada codifies the honest but mistaken belief in consent defence. It requires the accused to take reasonable steps to ascertain the complainant is consenting. It goes on to state where belief in consent is not a defence if: (a) the accused’s belief arose from the accused’s self-induced intoxication, or recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[118] The crown always bears the burden of proving the actus reus and mens rea beyond a reasonable doubt. It is however incumbent on the accused when raising this defence to explain “how and why [the] evidence informed his honest but mistaken belief that [the complainant] communicated consent to the sexual activity in question at the time it occurred.” (Barton (SCC), at para. 93) As set out in Ewanchuk, the defence of mistake is simply a denial of the necessary mens rea. It does not impose any burden of proof on the accused. (Also see R. v. R.(J.D.), [1987] 1 S.C.R. 918 (S.C.C.)).

[119] In determining whether there is an air of reality to this defence, the trial judge must “consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent”: Barton (SCC), supra at para 121. The defence cannot be considered by the trier of fact where “there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain that the complainant was consenting”: R. v. Gagnon, 2018 SCC 41 at para 2.

[120] To rely on the mistaken belief of consent, the accused must believe the complainant communicated her consent for every sexual act, but (s)he must also have taken reasonable steps to ascertain she was consenting to engage in the sexual activity, at the time it occurred. Parliament has indicated that the consent of the complainant must be an ongoing state of mind: A.(J.) at para. 42. The communication of the consent may be by words or conduct: Barton (SCC), at para. 91, citing Ewanchuk, at para. 46 and A.(J.).

[121] There are both objective and subjective dimensions to reasonable steps: “the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time” (Barton (SCC), at para 104, citing R. v. Cornejo, [2003] OJ No 4517 (C.A.) (leave to appeal refused: [2004] SCCA No 32) at para 22).

[122] One leading approach to the reasonable steps analysis is described in R. v. Malcolm, 2000 MBCA 77 (leave to appeal refused: [2000] SCCA No 473) at para 24: First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable person was aware of the same circumstances, would (s)he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence will apply.

[123] The Supreme Court of Canada in R. v. Esau, states: “before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence”: R. v. Esau, [1997] 2 S.C.R. 777, at para. 15. “All that is required for the accused to adduce some evidence, or refer to evidence already adduced, upon which a properly instructed trier of fact could form a reasonable doubt as to his mens rea”: R. v. Esau, ibid; R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.). However, as set out in Esau, the question of reasonable steps is a question of fact that is only determined after the air of reality test has been met.

[124] As the case law indicates, when the accused asserts the honest but mistaken belief in consent, if their belief is mistaken, the court must still examine the honesty of the belief in question. Initially, the court must determine if there exists any evidence to lend an air of reality to the defence. If so, then the question to be answered is “whether the accused honestly believed that the complainant had communicated consent”: See Ewanchuk, at para. 64. The accused’s belief cannot be “reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2.” (Ewanchuk, at para. 64).

[125] The defence of honest but mistaken belief in consent is a mistake in fact defence. This is different to a mistake in law, which is not an available defence. More importantly, as set out in Barton (SCC), “a belief that the absence of signs of disagreement could be substituted for affirmative communication of consent is a mistake of law.” Further, “[a]s a matter of law, consent must be specifically renewed — and communicated — for each sexual act.” (See Barton (SCC), at para. 118).

[126] If the complainant expressed at any time a lack of consent or agreement to engage in the sexual activity, then the accused must point to some evidence from which he could honestly believe consent to being re-established before he resumed his advances. “If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.” Ewanchuk, at para. 65.

[127] The reasonable steps requirement is to ensure that the accused cannot take the absence of a “no” as an automatic consent to sexual activity. (See Barton (SCC), at para. 105) Moreover, continuing sexual contact after someone has said “no” is at minimum reckless conduct which is not excusable.

[128] As stated by Justice Moldaver on behalf of the majority in R. v. Morrison, citing R. v. Sansregret: Recklessness refers to the state of mind of a person who, "aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk": Sansregret, at p. 582. By contrast, wilful blindness "arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant": p. 584.” See R. v. Morrison, 2019 SCC 15 at para. 100; R. v. Sansregret, [1985] 1 S.C.R. 570.

[129] The Supreme Court of Canada clearly articulates in A.(J.) and Ewanchuk that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. “It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault.” (See A.(J.) at para. 47; Ewanchuk, at para. 31)

[130] It is an error of law for the accused to believe that the complainant is still consenting after she expresses a lack of agreement to engage in the activity. “Activity” is interpreted in the case law as indicating every individual or separate action of a sexual nature. (See A.(J.), at paras. 39, 40).

[131] The defence of honest but mistaken belief of communicated consent requires the accused to have “believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind[,] wanted him to touch her but did not express that desire […] is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence”: Ewanchuk, at para 46; see also para 49.

[132] It is equally clear from A.(J.), that (1) the accused must stop all sexual contact once the complainant expresses she no longer consents, (2) that the complainant does not tell the accused to stop does not mean she consents, (3) the complainant need not express her lack of consent to the sexual contact for the actus reus to be established, (4) a person has a right to consent to any particular act, and to revoke her consent at any time. (See A.(J.), at paras. 41 and 43, and R. v. M. (M.L.), [1994] 2 S.C.R. 3.

[133] It is important to note that a complainant does not need to object by word or gesture, and lack of resistance must not be equated with consent: M.(M.L.), at para 2.

[134] The reasonable steps requirement is a precondition to the accused’s defence of honest but mistaken belief in communicated consent. This requirement engages the court in a highly fact-specific and contextualized inquiry. No reasonable steps, then no defence. (See Barton (SCC), at paras. 104 and 115). “It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time.” Barton (SCC), at para. 104.

[135] What is clear is reliance on stereotypical assumptions about women such as their passivity, silence or ambiguous conduct is not evidence of reasonable steps, and more importantly, belief by the accused that any of actions (or inactions) constitutes consent is a mistake in law. (See Barton (SCC), at para. 107, Ewanchuk, at para. 51).

[136] Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable: Ewanchuk, at para 52.

[137] The court sets out in Barton (SCC), “As L’Heureux-Dubé J. stated in Park, “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary” (para. 44 (emphasis in original)). (See Barton (SCC), at para. 91; R. v. Park, [1995] 2 S.C.R. 836 (S.C.C.)). An absence of positively communicated consent should be interpreted as a lack of consent: Park, at paras. 42 to 47.

[138] The crown can establish the accused knew the complainant did not consent to the sexual activity by proving, beyond a reasonable doubt, actual knowledge regarding lack of consent, by proving recklessness, or by proving the accused was wilfully blind to the issue of consent. Ultimately, the mens rea of the offence is established if the accused remains wilfully blind or reckless by acting on an assumption of consent without receiving or eliciting consent to the sexual activity.

Analysis

[139] As directed by W.D., I must first assess whether I believe the evidence of the accused, which would lead to an acquittal. Second, if I do not believe the testimony of the accused, but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Finally, recognizing I can believe some, none or all the testimony of any witness, including the accused, if I am unable to decide whom to believe, the accused is entitled to an acquittal.

[140] The accused’s evidence was that she believed the complainant communicated consent to the sexual activity by her movements and engagement in the activity, thus she argued she had honest but mistaken belief of consent. I am of the view that there is an air of reality to the accused’s assertion as to having an honest but mistaken belief of communicated consent based on the accused’s evidence of the complainant’s actions. The jurisprudence informs the court that the communication of consent may be by words or conduct.

[141] Given the defence raised, the court must determine whether the accused took reasonable steps to ascertain if the complainant was consenting, prior to engaging in the sexual activity.

[142] I am mindful that the onus of proving all the elements of the office is on the crown. This defence of honest but mistaken belief does not impose any burden on the accused.

[143] First, the motivation for the complainant attending the accused’s home the night prior to the alleged incident is irrelevant to the question of consent the following morning. To argue otherwise would be a mistake in law.

[144] Secondly, while the complainant may have attended the accused’s home the night prior in an intoxicated state, there was no evidence she was still intoxicated the next morning.

[145] The accused testified that though the complainant said “no, no, no”, by the complainant’s actions, the accused understood there was a “yes” to the activity. The accused then put her tongue between R.C.’s teeth, resulting in R.C. giggling, breaking the ice. Her evidence was the complainant was fun and playful – not crying or upset.

[146] The complainant’s evidence was that she was not consenting and denied making any gestures or noises to give the accused the idea that she was consenting to the sexual activity. She resisted being tied up and asked accused not to tie her up, she said no, she held her legs together as a form of resistance until she could not longer hold them together. She was crying and just laid there, not moving.

[147] I am mindful that engaging in sexual activity after being told “no”, without clear communicated consent, is inexcusably reckless conduct. Further, it is an error in law to believe R.C. was consenting to sexual activity after she expressed a lack of agreement to engage in the activity. The evidence however did not end there.

[148] The accused argued that R.C. did not tell her to stop. Again, this does not equate to consent – the case law is clear that a complainant need not object by words or gesture, and a lack of resistance must not be equated with consent. The accused cannot rely on R.C.’s, at best, ambiguous conduct as evidence of reasonable steps. This too is a mistake in law.

[149] The accused testified that she tried to pry the complainants’ legs apart – but the complainant was too strong. She testified that R.C.’s legs “are strong, there’s no way she would do things if she didn’t want me to”. The same language of “prying” the complainants’ legs open was used in the email exchange of March 22, 2020, where the accused wrote “I tried to pry your legs apart but you were too strong and I told you I needed you to give in a little. And you did and for a minute we were okay… Then we weren’t. And so I stopped and left the room because you were upset.”

[150] While there are some parts of the accused’s evidence which I do believe, I do not believe her evidence as to complainant’s movements and engagement in the activity. By all accounts, the accused had to “pry” the complainants’ legs open. The accused testified that when the complainant acquiesced and opened her legs, the sexual activity continued. Though the accused testified that the use of “pry” was a poor choice of words, based on the evidence which I accept, I am of the view that force was used to open the complainant’s legs. At that point, the accused ought to have stopped all sexual contact. I do not believe the accused’s evidence on this issue, nor am I left in an any reasonable doubt by it.

[151] Based on the evidence which I do accept, I am convinced beyond a reasonable doubt that the crown has proven that the accused knew, or was reckless and/or willfully blind, that the complainant was not consenting to the sexual activity in question. A conviction therefore will be registered on this count.

Issue 3: Has the Crown proven beyond a reasonable doubt the allegation of breach of probation?

[152] It was alleged that the accused, bound by a probation order with conditions including to keep the peace and be of good behaviour, failed to comply with that condition, without reasonable excuse.

[153] As submitted by the crown, the allegation of breach of probation rises or falls with the two other counts.

[154] It was uncontested that the original order was made, and the accused had knowledge of its existence. It was also uncontested that the order continued to be in force at the time of the breach, and that it pertained to the accused.

[155] Given my finding that the crown has made out the allegation of sexual assault, and based on the above, I find this allegation is also made out. A finding of guilt on this count shall be entered.

Disposition

[156] The accused is acquitted of the assault, but findings of guilt shall be entered for the sexual assault and breach of probation order.

Justice H. Desormeau Released: February 24, 2023