COURT FILE NO.: CR-21-50000397-0000 DATE: 2023-01-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - S. R.

Counsel: Stuart Rothman, for the Crown Maurice Mattis, for the accused

HEARD: November 28 – December 1, 2022

Subject to any further order of a court of competent jurisdiction, an order has been made in this proceeding, pursuant to s. 486.4(1) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

J.M. Barrett J.:

Reasons for Judgment

Overview

[1] SB described being sexually assaulted on two occasions by the accused – a man she believed to be her biological father. [1] She alleged that on March 1 and March 3, 2021, the accused sexually assaulted her by having vaginal intercourse with her without her consent as well as other unwanted sexual touching.

[2] SB was 16 years old at the time of the alleged offences. She had recently reconnected with the accused, after having been placed in foster care as an infant and raised by her adopted parents. The accused was on probation at the time of the alleged offences. These allegations form the basis of the three counts on the indictment: two counts of sexual assault on SB, on March 1 and 3, 2021, contrary to s. 271(a) of the Criminal Code, and one count of breach of probation, to wit, keep the peace and be of good behaviour, contrary to s. 733.1(1)(a) of the Criminal Code.

[3] SB testified that after the alleged assault on March 3, 2021, she ran to a Subway restaurant to seek help. She passed out and awoke in an ambulance. She was taken to the hospital where she underwent a sexual assault examination. The police attended at the hospital and interviewed SB. Screenshots were taken of SB’s text messages from her phone earlier that day and the day before. The admission of these text messages was the subject of a blended voir dire: see R v. S.R., 2023 ONSC 350.

[4] The accused testified. He admitted that, on March 1, 2021, he sexually touched SB. He admitted that he “kissed” her vagina and rubbed it with his penis to the point of ejaculation. However, he denied any vaginal penetration. He testified that the sexual activity was initiated by SB and was fully consensual. He argued that SB’s allegations of sexual assault on March 3, 2021, were fabricated – nothing sexually inappropriate occurred that day.

[5] Given the accused’s testimony, there are two key issues to be decided. First, whether the Crown has proven beyond a reasonable doubt that there was non-consensual sexual activity, including vaginal intercourse, on March 1, 2021. Second, whether the Crown has proven beyond a reasonable doubt that there was non-consensual sexual activity on March 3, 2021.

The Evidence

1. The Complainant’s Evidence

[6] At the outset of the trial, on application by the Crown and with the consent of the defence, an order was made to permit SB to testify using CCTV from a room in the courthouse. During cross-examination, it was discovered that a support worker from Boost had been in the room with SB during her testimony. The support worker was asked to leave the room. The cross-examination of SB continued briefly but SB became visibly upset and abruptly exited the room. The following day, upon application by the Crown and with the consent of the defence, an order permitting the use of a support person during SB’s testimony was made pursuant to s. 486.1(1) of the Criminal Code.

[7] SB testified that the accused is her biological father. She is named after him. Her name is tattooed on his chest. She was placed in foster care as an infant and eventually adopted by her foster family. She did not know the accused growing up. She reconnected with the accused and his family in 2018 after attending a funeral. Between 2018 and February 2021, they had some telephone contact.

[8] By February 2021, SB was no longer living with her adopted parents. She was “couch surfing”. She testified that when she told the accused of her circumstances, he invited her to live with him. At the time, the accused was living with his mother, his son, and his three brothers – R, M and C.

[9] SB moved in around mid-February. The accused told SB to sleep in his bed. For the first week or two, the accused slept upstairs on a couch. Towards the end of February, the accused started sleeping in the same bed as SB. This was not a concern to SB as they were on different ends of the bed. As SB explained, he was her father, and she had no reason to fear him. She never suspected anything would happen.

[10] The accused’s bedroom was in the basement. His brother C also had a room in the basement. The others all had bedrooms on the upper level of the home.

[11] On March 1, 2021, after an evening of drinking and smoking weed with the accused and other family members, SB went to bed. She had consumed about three or four shots of gin, a small amount of beer and had smoked some weed. Everyone that night drank a little bit more than usual.

[12] SB testified that when the accused entered the bedroom, he turned the lights off and got into bed. He started rubbing and touching her. He pulled her pants down and rubbed his penis on her vagina and buttocks. He then penetrated her vagina. He was not wearing a condom and ejaculated inside of her. He also flipped her around so that her head was towards the end of the bed and licked her vagina. SB could not recall how long it lasted as she “kinda blacked out”.

[13] At no time did SB say anything. Afterwards, the accused fell asleep. SB also fell asleep. When she awoke the next morning, the accused acted as if everything was normal. He remarked that she did not need a boyfriend as she had him now.

[14] On March 2, 2021, SB spent the day at the accused’s residence. That evening, she reached out to a friend – “Uncle P” – who picked her up. SB spent the evening at Uncle P’s home where she vomited throughout the night. The next morning – March 3, 2021 – at around 7 a.m., Uncle P dropped SB off at the accused’s residence.

[15] On the morning of March 3, 2021, SB spoke with her uncle R about what was going on. He told her that he could not help. SB went to the accused’s bedroom and got into his bed.

[16] During her examination in-chief, SB testified that she awoke to the accused’s penis in her vagina. She testified that she wanted to die. She did not know what to do so she grabbed her phone and texted Uncle P to tell him what was happening. SB’s recollection of how the March 3 assault ended was a bit “foggy”. She recalled running to a Subway restaurant to seek help. While there, she passed out. She awoke in an ambulance. She was taken to the hospital where a sexual assault kit examination was performed. It showed tearing to her vagina.

[17] SB testified that she did not want any of the sexual activity that occurred. It caused her to want to end her life; something she tried to do by hanging herself. The accused never asked if she wanted to engage in sexual activity.

[18] At trial, SB was visibly upset when asked if she wanted anything to occur. She appeared to moan when replying “no”. She only wanted her father. She explained how she felt lost at the time. She hoped to have a father-daughter relationship. The accused had spoken to SB about how – once he got some money – he would get an apartment where they could both live.

[19] In addition to the alleged sexual assaults, SB testified that whenever she had to go to the bathroom, the accused would tell her to pee on him. He did this for the entire time that she lived with him. As a result, she avoided using the bathroom and now suffers from bladder issues.

[20] SB was cross-examined on a number of inconsistencies between her statement to the police and her evidence at trial. For instance, she agreed she never told the police that the accused initially slept on the upstairs couch. She explained that no one asked about this. SB denied the suggestion that they shared the same bed from the start.

[21] Another inconsistency concerned how the sexual activity started on March 1, 2021. SB agreed that she told the police she awoke with the accused’s penis inside of her. However, at trial she testified that it started with the accused touching her and pulling her pants down. SB explained that she suffered from “pseudo-seizures” and had a seizure and blacked out; when she awoke the accused’s penis was inside of her. She agreed this is not in her police statement. She also agreed that she did not tell the police that the accused turned the lights off when he entered the bedroom, or that he remarked the next morning that she did not need a boyfriend.

[22] With respect to the events of March 2, 2021, SB agreed that she never told the police that she vomited throughout the night while at Uncle P’s home. Nor did she tell the police that on March 3, 2021, she went to her uncle R’s room and told him what was going on.

[23] SB vehemently denied the suggestion that on March 1, 2021, she and the accused were lying in bed together smoking weed when she initiated the sexual activity. She denied that she removed her own pants and underwear. She agreed that her “nana” was always just upstairs, with nothing to stop her from running upstairs for help. She explained that she did not want to deal with it. She was in shock and, as a 16-year-old, had nowhere to go. Fear took over.

[24] When cross-examined about the March 3, 2021 incident, SB testified that she could not recall where the accused was when she got into bed. She remembered at one point smoking while sitting in a chair in the accused’s bedroom. She testified that when the accused got into bed, she was awake which is why she was able to text Uncle P. She agreed that the accused did not restrain her but rather had his arms around her. SB agreed that she did not tell the police that the accused penetrated her on March 3. She denied the suggestion that the events of March 3 were fabricated.

2. The Photographs

[25] In a separate ruling, I found that the text messages SB sent to Uncle P on March 2 and 3, 2021 were inadmissible.

[26] The five photographs SB attempted to send to Uncle P during their text message conversation on March 3 are, however, admissible as real evidence. [2] SB testified that the photos were surreptitiously taken on March 3, 2021 as she was lying on her side in the accused’s bed with her head under the blankets and with the accused behind her in a “spoon” position.

[27] The accused admitted his tattooed hand is in two of the photographs. The defence position is that (i) the photographs of the accused’s tattooed hand were not taken on March 3, 2021, and (ii) the accused does not appear in the other three photos.

[28] One photograph shows the accused’s hand wrapped in front of SB’s chest. During cross-examination, SB identified her mouth and teeth in the photo.

[29] SB testified that the photos were taken and sent during a text message conversation with Uncle P, in which she asked for help. SB explained how it was Uncle P who notified the police.

[30] Screenshots of the photographs were taken by the police later that day when SB was at the hospital, having been taken there by ambulance after passing out at a Subway restaurant.

3. The Defence Evidence

[31] The accused was 38 years old at the time of the alleged offences. [3]

[32] During his examination in-chief, the accused testified that he was not “too sure” if SB was his daughter. In cross-examination, he agreed that he knew there was probably a chance that she was his daughter. He agreed that SB is named after him. Her name is tattooed on his body. He further agreed that this was why he maintained contact with her over the years.

[33] The accused saw SB when she was a few weeks old. He then had no contact with her until 2018. Between 2018 and 2021, he testified that they spoke a few times on the phone. He also saw her once in 2019.

[34] On Valentine’s Day in 2021, SB called him to say she was coming to see him. She arrived a few hours later and stayed. He denied ever inviting SB to live with him. As he explained, he himself only had temporary housing. He had been at his mother’s home for about one week. He also knew that his mother wanted him to leave in about a month. He was unemployed at the time. He was staying with his mother while he applied for government identification documents.

[35] The accused’s son and his three brothers also lived with his mother. He and his brother C had separate bedrooms in the basement. The others all had bedrooms on the upper floor.

[36] On February 14, 2021, after SB arrived, she crawled up on his bed and fell asleep within about half-an-hour. From the outset, she slept in his bed. He did not know at that time that she was having problems with her adopted family and had been “couch surfing”. He learned of this after a few days. The accused agreed in cross-examination that the bed sharing did not raise any concerns because he and SB had a father-daughter relationship.

[37] The accused described a typical day as “chilling” while drinking, listening to music, and smoking weed. SB also drank and smoked weed. This did not concern him as he too did this as a teenager. Her use of hard drugs, however, including crystal meth, was a concern.

[38] March 1, 2021 was the accused’s birthday. That morning, SB wished him a happy birthday and gave him a hug. Starting at around 1 p.m., the family hung out at the house. Drinking started at around 7 p.m. They drank more than usual – about three or four bottles of rum, gin, and Hennessy, split between the accused, his mother, SB and two of his three brothers. They also smoked weed. In cross-examination, the accused described his condition as impaired. He knew that SB was a bit drunk.

[39] At about 3:30 a.m., the accused retired to his room. He was pretty sure SB was in the bedroom when he arrived. He had a bottle of Appleton Rum that he placed on a table while he rolled a joint. He and SB then smoked the joint and had a shot of rum. The lights were on in the bedroom. They talked about music. He suggested SB could write a track and perhaps become the next “Nicki”.

[40] The accused testified that he and SB started flirting. SB took off her pajama bottoms and sat on the bed in her underwear. She got on top of him. He told her to turn around and pulled her legs up to his face. He then moved her underwear to the side and began kissing her butt and vagina. As he did this, SB propped herself up and removed her underwear. The accused used his left hand to masturbate while he licked her vagina for about five or six minutes until SB climaxed. SB then laid on her back. He got on top of her and rubbed his penis on her vagina for a few seconds until he ejaculated. Afterwards, SB made a joke about his small penis. They had a smoke and then went to bed. At no time did SB ask him to stop.

[41] On March 2, 2021, the accused awoke at about 10 a.m.. It was a regular day of chilling, smoking, and drinking. SB left in the evening. She did not return until the following morning – March 3, 2021.

[42] As for March 3, 2021, the accused testified that he got out of bed early as he had to go to the “Ministry” to get his health card and licence. SB came into his room and smoked one of his joints. At one point, they were sitting side-by-side on the bed when he placed one hand on her upper thigh and asked “you good? I’m here if you ever need to talk.” He then went to shower. When he was finished, SB was gone. He never saw her again. He denied that any sexual touching occurred that day. He testified that SB’s account was not possible as he was already out of bed when she arrived.

[43] After he showered, the accused left the house to go get his identification documents. As he got into his mother’s vehicle, he heard SB on the phone “cussing”, telling his mother that her son is “fucked-up”. The accused was surprised. He figured that SB must have been talking about what happened on March 1, 2021, but this did not make any sense as SB was into it, and there were no other disputes that might explain SB being upset. The accused went with his mother to get his government documents. As soon as he returned to the house, the phone rang – it was the police. He spoke with a friend who suggested he flea. He did not. He knew his conscience was clean.

[44] The accused agreed that his account of March 3, 2021, was inconsistent with the photographs S.B. sent to Uncle P that day. He explained that the photos could not have been taken on March 3, 2021. He did not know when the photos were taken, but he testified that SB was always taking photos.

[45] During cross-examination, the accused was pressed to explain how, within minutes, he went from sitting on his bed talking with SB about music to licking her vagina. He testified that they were joking and laughing when SB said in a flirty voice “I’m cute”. He replied “I’m cute too”. He then asked “wha gwan” [4] to which SB shrugged her shoulders. The accused agreed that there was nothing overtly sexual about this exchange between a 16-year-old daughter and her 37-year-old father.

[46] When asked what steps he took to ensure SB’s consent, the accused added that he asked SB if she wanted to “get freaky” and she replied “yeah” while nodding her head. He asked this because he was “feeling horny” at the time. He agreed that it was he who initiated the discussion, but only after he saw the “vibes”. As the accused explained, “she never said no”. The accused agreed that he never asked SB if it was okay for him to rub his penis against her vagina. He explained that he knew it was consensual because he was kissing her vagina and obviously “if it went that far” it would lead to something else. If it was a problem, she would scream, or say no. He would never force himself on a female as he is well aware of the risks to inmates who are convicted of such crimes.

[47] During cross-examination, the accused admitted that, on March 1, 2021, it did not cross his mind that there was a concern about having sexual activity with someone who might be his daughter. As he explained, it was his birthday, there was a lot of drinking, he was feeling horny, and this just did not cross his mind. According to the accused, SB initiated the activity and was an enthusiastic participant throughout. The next day, however, he felt embarrassed and dirty.

4. The DNA Evidence

[48] On March 3, 2021, SB underwent a sexual assault examination at Sick Kids Hospital. DNA found on an external genitalia swab was compared to a blood sample obtained from the accused pursuant to a DNA warrant. A biology report by forensic scientist Jennifer McLean concluded that it was “estimated to be greater than one trillion times more likely” that the accused was the source of the male DNA from the swab as opposed to some “unknown person, unrelated to him”.

[49] The Crown relies on the DNA report solely for purposes of identification which the accused has admitted. The Crown submitted that the report was of no value in determining whether sexual intercourse occurred on March 3, 2021.

[50] The defence position is that because the accused’s DNA was only found on SB’s external genitalia, this supports the accused’s testimony that no penetration occurred on March 1, 2021.

The Relevant Legal Principles

1. The Offence of Sexual Assault

[51] The accused is charged with two counts of sexual assault contrary to s. 271(a) of the Criminal Code. The law is clear that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (i) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity; (ii) that the complainant did not consent to this touching; and (iii) that the accused knew that the complainant was not consenting to the sexual touching, or that he was reckless or wilfully blind in relation to whether or not the complainant was consenting: see R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 23-25; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 25.

[52] What constitutes “consent” for the purposes of s. 271 is informed by the common law and various provisions of the Criminal Code which set out what is and is not legally valid consent. A key statutory provision is s. 273.1 which “operates as the gateway to consent”: R. v. Kirkpatrick, 2022 SCC 33, 471 D.L.R. (4th) 440, at para. 31.

[53] Consent is defined in s. 273.1(1) of the Criminal Code, as “the voluntary agreement of the complainant to engage in the sexual activity in question.” It requires a freely given “conscious agreement of the complainant to engage in every sexual act in a particular encounter”: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 31. Consent is not an all or nothing concept. A complainant may consent to some types of sexual activity, but not others. Consent can also be revoked at any time: see R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 44; G.F., at para. 29; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88; Ewanchuk, at para. 36.

[54] Section 273.1(1) of the Code must be read together with s. 273.1(2) which sets out a non-exhaustive list of circumstances in which no consent is obtained. Of relevance to this case is s. 273.1(2)(c) which states that no consent is obtained where “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.

[55] Read together, ss. 273.1(1) and (2) clarify what subjective consent to sexual activity requires to be effective: see Kirkpatrick, at para. 32.

[56] In circumstances where the complainant subjectively consented, or if there is a reasonable doubt as to the complainant’s consent, regard must still be had to s. 265(3) of the Code. Section 265(3) sets out circumstances in which the complainant’s subjective agreement is vitiated – in other words, where the law deems an absence of consent: see Ewanchuk, at paras. 36, 62; Kirkpatrick, at para. 33.

[57] Section 265(3) states that “no consent is obtained where the complainant submits or does not resist by reason of: (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.” In these circumstances, the law “steps in to say that despite the complainant’s subjective agreement, it will not be given legal effect”: G.F., at para. 34. See also paras. 35-36.

[58] As explained in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 31-50 and 65-66, the effect of these various statutory provisions is to ensure that legally effective consent requires that the complainant provide present, active, ongoing, conscious consent throughout the course of the sexual activity in question. This concept of consent applies even in the context of an established relationship, even part way through a sexual encounter, and even in circumstances where the act is one that the parties have previously engaged in consensually. In other words, as stated by Karakatsanis J. for the majority in Goldfinch, at para. 44, “[t]oday, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required”: see also para. 74; Kirkpatrick, at paras. 52-53.

[59] The accused is always entitled to invite the trier of fact to find that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, the trier of fact accepts the complainant’s testimony that she did not consent – i.e., she did not want the sexual touching in question to take place – the actus reus is established. Given the entirely subjective nature of the complainant’s consent to the sexual activity in question, the Crown need not establish that the complainant communicated her lack of consent to the accused for the actus reus to be established: see Ewanchuk, at paras. 30-31, 48; Barton, at para. 89; J.A., at para. 37; Kirkpatrick, at para. 50.

[60] While the actus reus is focused on the complainant’s state of mind, when determining mens rea the focus shifts to the mental state of the accused. The mens rea inquiry is focused on whether the accused subjectively believed that the complainant communicated, by words or actions, her consent to the sexual activity in question, provided the accused took “reasonable steps” to ascertain whether the complainant was consenting to the sexual activity in question: Barton, at paras. 86-123. See also Ewanchuk, at paras. 30, 48-49; J.A., at para. 37.

[61] In assessing an accused’s subjective belief, caution is required to ensure it does not rest on stereotypical gender-based assumptions, or self-serving beliefs reflective of a mistake of law. An accused cannot rest his subjective belief in consent on: (i) the complainant’s “implied consent” arising from her silence, passivity, or ambiguous conduct; (ii) a broad advanced consent to activity of an undefined scope; or (iii) the complainant’s propensity to consent based on prior willingness to engage in the same or similar activity: see Barton, at paras. 94-100; Ewanchuk, at para. 51.

[62] In circumstances where the accused has an honest subjective belief in the complainant’s consent, s. 273.2 of the Criminal Code limits its availability. It states that it is not a defence that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from his self-induced intoxication, or from his recklessness or wilful blindness. Nor can an accused rely on his belief that the complainant consented to the sexual activity alleged where the accused (b) did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (c) there is no evidence the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[63] As evidenced by a plain reading of s. 273.2, a precondition to an accused’s honest but mistaken belief is the requirement of “reasonable steps” to ascertain that the complainant was consenting. An absence of reasonable steps is fatal to the defence. The steps taken must be objectively reasonable, and the reasonableness of the steps taken must be assessed in light of the circumstances known to the accused at the time. An accused need not, however, “take ‘all’ reasonable steps”: Barton, at para. 104.

[64] The reasonable steps inquiry is highly fact specific. What is required will vary depending on the circumstances, including the nature of the sexual activity in question, and whether the accused and complainant know each other: see Barton, at paras. 106-09.

2. The Offence of Breach of Probation

[65] The accused is also charged with one count of breach of probation contrary to s. 733.1(1)(a) of the Criminal Code. This offence requires that the Crown prove, beyond a reasonable doubt that the accused: (i) was bound by a probation order; (ii) failed or refused to comply with that order; and (iii) has no reasonable excuse for that failure or refusal.

[66] In this case, there is no issue that, if the accused is found guilty of count one and/or count two, he breached the terms of his probation order.

3. The Presumption of Innocence and the Burden of Proof on the Crown

[67] The accused is, of course, presumed innocent. He need not prove anything. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedom: see Dubois v. The Queen, [1985] 2 S.C.R. 350, at paras. 10-12; R. v. Pearson, [1992] 3 S.C.R. 665, at paras. 28-31, 40.

[68] It is also important to recall the nature of the heavy burden of proof on the Crown. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[69] A belief that an accused is probably guilty or likely guilty, is not proof beyond a reasonable doubt. However, proof of guilt to an absolute certainty is not required. Nevertheless, as the Supreme Court stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding them guilty of that offence.

[70] Further, as the accused testified in this case, in assessing whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the three important principles articulated by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742, at paras. 27-29. Namely, (i) if I believe the testimony of the accused that he did not commit the alleged offences, I must find him not guilty; (ii) even if I do not believe the testimony of the accused that he did not commit the alleged offences, if his testimony leaves me with a reasonable doubt as to his guilt regarding these offences, I must find him not guilty; and (iii) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt, I may only find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt. The court’s evaluation of the accused’s testimony must, of course, take the evidence as a whole into account.

[71] The application of these principles ensures that reaching a verdict does not devolve into a mere “credibility contest” between the two main witnesses – the complainant and the accused – and ensures the proper application of the presumption of innocence and the Crown’s burden of establishing the alleged guilt of the accused beyond a reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8. See also paras. 6-7; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28.

Conclusions

[72] Having considered all the evidence in this case, I turn now to my conclusions regarding this evidence and the allegations in the indictment.

[73] Let me begin by setting out what I have not considered. First, as observed by defence counsel in closing submissions, this is a disturbing case for which one must be on guard to ensure no feelings of sympathy or prejudice inform the assessment of the evidence and the factual findings that must be made.

[74] Second, although the allegations, if true, may also support charges of incest and/or sexual exploitation contrary to ss. 155(2) and 153(1.1) of the Criminal Code, such charges are not before the court. Accordingly, I have only considered whether the alleged unwanted sexual touching constitutes the offence of sexual assault.

[75] Third, although there was evidence that, on March 1, 2021, SB may have been drunk and/or blacked out during the sexual activity, the parties agree that there is no issue concerning her capacity to consent at the time of the alleged assaults. Rather, the issue is solely one of consent.

[76] Finally, given the multi-count indictment, I have not used the evidence on one count as proof of another. I am mindful that propensity reasoning is strictly prohibited. Each count must be considered separately: see R. v. Baksh, 2022 ONCA 481, at paras. 20-29.

[77] As already noted, given the accused’s evidence, the key factual issues in dispute are: (i) whether the sexual activity on March 1, 2021 was consensual and included vaginal intercourse; and, (ii) whether any non-consensual sexual touching occurred on March 3, 2021.

[78] Applying the approach set out by the Supreme Court in W.(D.), at paras. 27-29, I have carefully considered the accused’s evidence. Having done so, I do not accept it where it differs from that of SB on the issue of consent and the nature of the sexual touching. Nor do I find it raises a reasonable doubt.

[79] I will deal first with March 1, 2021. I do not believe that SB initiated and consented to the sexual activity acknowledged by the accused. Nor do I believe that the accused stopped short of full vaginal intercourse with SB.

[80] The accused testified that he licked SB’s vagina until she climaxed. He then he got on top of her and rubbed his penis on her vagina for a few seconds until he ejaculated without ever penetrating her. However, on the accused’s own evidence, he was “feeling horny” and SB was an enthusiastic participant. I reject the accused’s claim that the activity stopped short of full vaginal intercourse. This does not make sense in light of SB’s unchallenged testimony that her medical examination on March 3, 2021 showed vaginal tearing. [5]

[81] Of particular relevance is the accused’s incremental account of what preceded the sexual activity on March 1, 2021. The accused’s evidence on the issue of consent evolved during the trial proceedings.

[82] During his examination in-chief, he testified that he and SB began “flirting” when they were in his room and that this led to SB removing her pajama pants and getting on top of him. Once SB got on top of him, he told her to turn around. He moved her underwear to the side and began kissing her vagina, but it was SB who removed her own underwear.

[83] In cross-examination, however, the accused was pressed to explain how things quickly escalated from talking to sexual activity. He then testified that while he and SB were sitting on his bed, SB started flirting by saying “I’m cute” to which he replied, “I’m cute too”. He then asked SB “wha gwan” [4] and she shrugged her shoulders.

[84] The accused was asked to explain further given the lack of anything overtly sexual about this purported exchange. It was only then that he added that he asked SB if she wanted to “get freaky” and she nodded. He also testified that SB sent him “vibes”.

[85] Given that SB was never asked about such an exchange, the Crown raised its concern that the rule in Browne v. Dunn, [1893] J.C.J. No. 5, was violated: see R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81.

[86] This concern was the subject of submissions as the Crown noted several other aspects of the accused’s testimony that SB was not questioned on, including: the accused’s claim that SB made a joke about his small penis; that SB called the accused’s mother on March 3, 2021; that the accused never invited SB to live with him – she just showed up; and, that the accused never invited SB to pee on him.

[87] The defence position is that the rule in Browne v. Dunn was not violated as the issues were either non-substantive and/or arose during cross-examination. The defence relies on R. v. Harnett, 2022 ONCJ 65, at para. 57, for the proposition that the rule is not triggered where the alleged violation arises in cross-examination.

[88] While counsel is not obliged to “descend into the muck of minutiae”, the conversation during which the accused claims SB communicated her consent is central to this case: Quansah, at para. 86. It ought to have been put to SB, as it contradicts SB’s account that the accused never asked if she wanted to engage in sexual activity. That this was not asked is a violation of the rule in Browne v. Dunn. It is a basis on which I may, but not must, accord diminished weight to the accused’s testimony on this issue.

[89] The fact that this testimony was first elicited in cross-examination does not foreclose the operation of the rule in Browne v. Dunn. In my view, Harnett does not establish such a hard and fast rule. Each case must be assessed having regard to the factors set out in Quansah, at para. 84. Ultimately, it is the principle of fairness that governs. Fairness to the witness, to the parties, and, to the trier of fact. In this case, this evidence was central to the accused’s claim that the sexual activity was consensual and ought to have been put to SB. This is not a situation in which defence counsel intentionally avoided eliciting the evidence only to have the issue explored by the Crown in cross-examination and then relied on it as a basis for an adverse credibility finding: see R. v. Graziano, 2015 ONCA 491, 336 O.A.C. 178, at paras. 34-37.

[90] However, the diminished weight I place on the accused’s testimony as it relates to this conversation flows not from the violation of the rule in Browne v. Dunn, but from the fact that this testimony was only given in cross-examination after the accused was pressed to explain the basis for his belief that the sexual activity was consensual. This is an important omission on a critical issue.

[91] In my view, the rule in Browne v. Dunn was not triggered by the other alleged violations listed by the Crown as they were not significant in the overall context of the case.

[92] It was also apparent that throughout his testimony the accused attempted to downplay his father-daughter relationship with SB. During his examination in-chief, he testified that he wasn’t “too sure” if SB was his daughter but that she “could be”. However, during cross-examination, he agreed he knew there was a chance SB was his daughter and admitted that this was why he maintained contact with her. He also agreed that because SB was his daughter, there were no issues with them sharing a bed.

[93] The accused relied on his criminal antecedents to argue that he would never force himself on a female because of the known risks such a label presents for inmates. This assumes, however, that he had the forethought of mind to consider such risks. As the accused admitted, he was “feeling horny” and it never even crossed his mind that SB was probably his daughter.

[94] The redacted [6] criminal record that was filed as Exhibit 7 shows the accused has one very dated conviction for an offence of dishonesty and more than a dozen convictions for breaching court orders of more recent origin. Given the other significant issues with the accused’s credibility, I have not considered whether his criminal record is a further basis on which his credibility is suspect.

[95] With respect to March 3, 2021, I reject the accused’s evidence that he only placed his hand on SB’s upper thigh in a caring or concerned manner. It lacks credibility when considered in light of the evidence as a whole.

[96] For instance, the accused agreed that his account of March 3, 2021, could not be reconciled with the photographs SB attempted to send to Uncle P. While the accused testified that SB was always taking photographs and could have taken these at any time, two photos clearly show his hand under SB’s torso – a position consistent with them lying in a “spoon” position as SB claimed. Further, it was not suggested to SB that she doctored the photographs prior to the police taking screenshots of them.

[97] The defence theory that SB fabricated her allegations of a sexual assault on March 3, 2021, suggests a degree of sophistication, foresight and planning by SB that, in my view, is not supported by the evidence.

[98] It is not disputed that, on March 3, 2021:

• Uncle P dropped SB off at the accused’s residence at around 7 a.m.
• SB left the accused’s residence when the accused was in the shower.
• SB passed out at a Subway restaurant and was taken by ambulance to the hospital.
• Uncle P called the police.
• The police interviewed SB at the hospital and took screenshots of her text messages.
• When the accused returned home from having gone to the “Ministry” for his identification documents, the police called and informed him of the allegations.

[99] For SB to have fabricated her allegations about what happened on March 3, 2021, her deceit would need to have started with her text messages to Uncle P and would also necessarily include the doctoring of photographs SB claims were taken on March 3, 2021. However, there is no issue that the accused’s tattooed hand is in two of the photographs and it appears to be wrapped around SB.

[100] It is the cumulative effect of these elements identified in the accused’s testimony at trial that impact negatively on his credibility. I reject the accused’s testimony that SB initiated the sexual activity on March 1, 2021 and that it did not include vaginal intercourse. I also reject the accused’s testimony that he did not sexually touch SB on March 3, 2021. For the same reasons, the accused’s account, considered within the context of the evidence as a whole, does not raise a reasonable doubt.

[101] Having rejected the evidence of the accused and finding that it does not raise a reasonable doubt, I must still consider whether, based on the evidence that I do accept, I am satisfied that all the elements of the offences have been proven beyond a reasonable doubt. I am.

[102] The complainant is a credible and reliable witness. She struck me as being clear, forthright, articulate, honest, and fair in her account of the events. I will deal first with the allegations of March 1, 2021.

[103] I accept SB’s testimony of what occurred on March 1, 2021. Her account was confirmed to a significant degree by the accused. That there was sexual activity is not in dispute. Rather, the issue is whether it was consensual and whether it included vaginal penetration. On these disputed issues, I accept SB’s evidence.

[104] I do not accept that SB initiated the sexual activity and removed her own underwear while the accused kissed her vagina.

[105] SB explained how she longed to have a relationship with the accused as he was her father. Having grown up in foster care, she felt lost. The last thing she wanted was for the police to get involved. She never wanted to share the details of what happened. At trial, SB was visibly upset and, at times quite emotional when describing how she had no one and nothing other than the accused.

[106] As to the issue of motive, the Crown acknowledged that this is a neutral factor as there is no proven absence of motive to lie: see R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at para. 4.

[107] While there were some inconsistencies in SB’s account, she candidly acknowledged these in cross-examination. Ultimately, there was nothing in her evidence that caused me to, in any way, doubt her sincerity, or the honesty and reliability of the key points of her version of events. Her viva voce testimony as to the events of March 1, 2021, was quite compelling. SB vividly described how the accused went in and out with his penis until he ejaculated inside her vagina. I am satisfied that SB did not mistake the accused rubbing his penis against her vagina – an admitted fact – with full penetration to the point of ejaculation inside of her. This is consistent with SB’s unchallenged testimony that the sexual assault examination showed vaginal tearing.

[108] The defence argument that the DNA report is consistent with the accused’s account that no penetration occurred on March 1, 2021, because semen was only found on SB’s external genitalia assumes that semen ought to have been found inside of SB’s vagina two days later if vaginal intercourse occurred. No medical evidence was adduced on this issue. While there is no onus on the accused to prove anything, the fact that semen was only found on SB’s external genitalia does not, in my view, detract from SB’s testimony that there was vaginal penetration.

[109] I have also considered the demeanour evidence. Post-event demeanour evidence, or the emotional state of a sexual assault complainant, may be used as circumstantial evidence to support an allegation of sexual assault: see R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 17-18, rev’d on other grounds 2011 SCC 17, [2011] 1 S.C.R. 628 (affirming this ground at paras. 40-41); R. v. Mugabo, 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25.

[110] In this case, SB testified that when she left the accused’s home on March 3, 2021, she ran to a Subway restaurant and passed out due to a stress-induced seizure. If SB initiated and actively participated in the sexual activity of March 1, 2021, as claimed by the accused, her flight to a public restaurant where she passed out makes little sense. SB had nothing to gain but much to lose by alleging sexual abuse. Her reaction, however, does make sense if she returned to the accused’s home – the only home she knew at the time – to be sexually assaulted again. Further, the fact that she returned does not detract from her credibility. How someone reacts to trauma will vary; there is no standard reaction: see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

[111] With regards to the alleged sexual assault on March 3, 2021, I do not accept that SB fabricated this account. I have considered SB’s testimony in light of the evidence as a whole, including the photographs. There is no issue that the accused’s tattooed hand is in two of the photographs. As noted above, this is consistent with SB’s account that she and the accused were lying in a “spoon” position on his bed with his arm wrapped around her chest.

[112] That these allegations were fabricated makes little sense. The accused provided shelter to SB in a time of need. As SB explained, he was all she had. Further, it was Uncle P who called the police, not SB. Nor did SB ever ask for the police to be called. It was also quite evident that SB did not want to be in court publicly sharing details of what happened.

[113] As to the nature of the sexual touching on March 3, 2021, however, I am not satisfied beyond a reasonable doubt that it included vaginal intercourse.

[114] SB’s testimony on this point was inconsistent and lacking in detail. For instance, during her examination in-chief, SB testified that she woke up to the accused already penetrating her. Further, SB testified it was nighttime. However, this is inconsistent with the evidence as a whole which shows whatever happened on March 3, 2021, happened in the morning as SB was at the hospital in the afternoon.

[115] Another inconsistency is that SB’s police statement did not disclose vaginal penetration. Nor did SB report vaginal penetration to Uncle P. Further, during cross-examination, SB testified that on March 3, 2021, “he stopped before it got that bad” and “I don’t think he went all the way”. Given this evidence, I am concerned about the reliability of SB’s testimony in-chief that there was vaginal penetration on March 3, 2021. It is unclear whether SB was confused with respect to the dates and was describing what happened on March 1, 2021.

[116] Finally, while I have accepted SB’s account that she did not want any of the sexual activity that happened on March 1, 2021, and that it included vaginal intercourse, even if I did not, I would have found the accused guilty of sexual assault on count one based on his own testimony. This conclusion rests on two distinct bases, either of which establish that the accused did not act on an innocent but flawed perception of the facts: see Ewanchuk, at paras. 42-43.

[117] First, there is no evidence that the accused took any reasonable steps to ascertain SB’s consent. The accused’s belief that SB consented was founded on stereotypical beliefs and a profound misunderstanding of what constitutes consent to sexual activity. The accused’s belief relied on SB’s silence and passivity. In his own words, “she never said no”. At its highest, even on the accused’s testimony, SB’s conduct was ambiguous.

[118] In these circumstances, the accused cannot avoid culpability by relying on “vibes” and an ambiguous discussion about whether SB wanted to get “freaky”. The accused is not permitted to rely on his own speculation about what SB was thinking as a lawful substitute for her communicated consent to the sexual activity that occurred. Even in a pre-existing relationship between two consenting adults, the accused’s conduct falls significantly short of what is required by our law. A reasonable person in these circumstances would have taken further steps before engaging in sexual activity: see Barton, at para. 118; Ewanchuk, at para. 49; Kirkpatrick, at paras. 53-54.

[119] Second, the accused is legally barred from relying on any ostensible consent by SB given his position of trust and authority. On March 1, 2021, SB was a vulnerable 16-year-old. Having grown up in an adopted family, she hoped for a father-daughter relationship with the accused. He provided shelter when she was homeless. He was some 22 years her senior. He also knew that she was under the influence of drugs and alcohol. In these circumstances, any apparent consent is barred by the operation of s. 273.1(2)(c) of the Criminal Code, which states that no consent is obtained where the complainant is induced by an abuse of a position of trust, power, or authority. That is this case, at a minimum.

[120] During closing submissions, the defence argued that because SB initiated the sexual activity and actively participated in it, she was not “induced”. I disagree. This fails to recognize the broader scope of s. 273.1(2), as compared to s. 265(3)(d) which imports an element of coercion. It also ignores the “robust definition of consent under s. 273.1”: Kirkpatrick, at para. 74.

[121] To rely on evidence that the complainant initiated and participated in the sexual activity as determinative of her consent is inconsistent with the broad scope of “consent” under s. 273.1(2). The defence position ignores the inherent power dynamic at play. It also gives paramountcy to one aspect of the sexual activity without regard to the whole of the circumstances. As stated by Griffin J.A. for the Court of Appeal for British Columbia in R. v. M.S., 2022 BCCA 390, at para. 51:

A determination that the accused abused his position of trust to induce the complainant to engage in the activity does not require overt words of persuasion. Rather, the whole of the circumstances must be considered to determine whether the complainant was induced — whether that is described as influenced, enticed, or persuaded — by the accused’s abuse of trust to engage in the sexual activity. [Emphasis added.]

See also R. v. Emerson, 2022 BCCA 5, 410 C.C.C. (3d) 105, at para. 52, citing R. v. Snelgrove, 2018 NLCA 59, 366 C.C.C. (3d) 164, at para. 24, aff’d 2019 SCC 16; [2019] 2 S.C.R. 98; R. v. Lutoslawski, 2010 ONCA 207, 326 D.L.R. (4th) 637, at para. 13, aff’d 2010 SCC 49, [2010] 3 SCR 60, citing R. v. Makayak, 2004 NUCJ 5, [2004] Nu.J. No. 3, at para. 70.

[122] Moreover, while the accused is not charged with the offence of sexual exploitation, to the extent that the accused seeks to rely on SB’s ostensible consent to the admitted touching and oral sex, these provisions of the Criminal Code are informative.

[123] In particular, SB is a “young person” as that term is defined in s. 153(2) of the Code. Pursuant to s. 153(1.2), it is open to me to find that the relationship between SB and the accused was exploitative having regard to the “nature and circumstances of the relationship, including (a) the age of the young person; (b) the age difference between the person and the young person; (c) the evolution of the relationship; and (d) the degree of control or influence by the person over the young person.” In my view, the relationship between the accused and SB was exploitative.

[124] SB was a vulnerable young person who, at the time of the sexual activity, was reliant on the accused for shelter, was under the influence of intoxicants, and longed for a father-daughter relationship. In my view, if a relationship is found to be “exploitative” pursuant to s. 153(1) of the Code, it would be rare to find that any ostensible consent was the product of a “right to freely choose to consent to sexual activity”: Snelgrove (2019), at para. 3, citing R. v. Hogg (2000), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17. Just as extortionate conduct may bar voluntary consent, the same is true of consent that is the product of an exploitative relationship. The fact that the accused was not charged with this offence does not preclude a consideration of this factor for purposes of assessing whether a complainant’s subjective consent was legally effective: see R. v. D. G. S., (2004) 72 O.R. (3d) 223, at paras. 53-57, aff’d 2005 SCC 36, [2005] 1 S.C.R. 914. See also Snelgrove (2019), at para. 3; Ewanchuk, at para. 38; M.S., at para. 53.

Verdict

[125] To conclude, I am satisfied beyond any reasonable doubt that the accused is guilty of all three counts of the indictment, namely sexually assaulting the complainant on March 1 and 3, 2021, and breaching his probation in doing so.

Joan M. Barrett J. Released: January 26, 2023

COURT FILE NO.: CR-21-50000397-0000 DATE: 20230126 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING - and - S.R. REASONS FOR JUDGMENT J.M. Barrett J. Released: January 26, 2023

[1] No biological evidence was adduced to establish that the accused is SB’s biological father. The defence, however, did not dispute SB’s assertion that the accused was her father.

[2] The screenshots of the photographs show that they were not delivered.

[3] Throughout the trial proceedings, counsel referred to the accused’s age at the time of the alleged offences as being 37 years old. However, the probation order filed as Exhibit 6, shows his date of birth as March 1, 1983. Accordingly, he was 38 years old at the time of the alleged offences. However, it matters not whether he was 37 or 38 years old at the time of the alleged offences.

[4] “Wha gwan” is a Patois expression for “what’s up”.

[5] Later in my reasons, I explain why I am not convinced beyond a reasonable doubt that there was vaginal penetration during the March 3 incident. Therefore, I do not believe the vaginal tearing occurred as a result of the sexual assault alleged to have taken place on that day.

[6] The defence originally expressed an intention to bring a Corbett application. This became unnecessary when counsel agreed to the filing of a redacted criminal record.