COURT FILE NO.: 19-DV-4755 DATE: 2023/06/23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Paul Needham, Accused
Counsel: Stephen Donoghue for the Crown Natasha Calvinho for the Accused
HEARD: May 23, 25, 26, 29, 30, 2023, June 2, 2023, oral decision given June 22, 2023
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
REASONS FOR JUDGMENT
Somji J.
Overview
[1] The accused Paul Needham is charged with one count of sexual assault on his former spouse, the complainant. The parties were in a 10-year relationship and have two children. It is not disputed that the parties separated in November 2018, but continued to co-habit as a family until the complainant’s departure from the marital home on January 27, 2019.
[2] The following day, January 28, 2019, the complainant reported to the police that she had been sexually assaulted by Mr. Needham on January 10, 2019, while they were still co-habiting. At trial, the complainant and the accused each gave a diametrically opposed accounts of what transpired on that night. The complainant gave evidence that she clearly said “no” and “don’t” but the accused proceeded to have non-consensual sexual intercourse with her. The accused testified that the complainant never uttered such words, but that the parties engaged in reciprocal acts of kissing and touching after which he proceeded to engage in oral sex upon the complainant’s express request.
[3] In addition to the testimony of the complainant and the accused, I also heard from two officers and the accused’s mother Ms. Needham. These witnesses were called by the defence.
[4] This case turns on the credibility of the witnesses. The Crown argues that the complainant’s evidence should be preferred, and even if on a W.(D.) analysis I accept the evidence of the accused, his own account of the events establishes that he did not take reasonable steps to ascertain consent and therefore, the evidence should not leave me with a reasonable doubt that a sexual assault occurred. Defence argues that there is sufficient evidence from the complainant’s words and gestures as described in the accused’s account, if accepted, that establishes consent to the sexual activity that occurred on January 10, 2019.
Applicable Legal Principles
[5] The test in a criminal trial is not which side, Crown or defence, I believe more but whether the Crown has proven the offences beyond a reasonable doubt.
[6] The accused is presumed to be innocent unless and until the Crown has proven each of the elements of the offence(s) charged beyond a reasonable doubt. This burden does not shift.
[7] In this case, the accused is charged with one count of sexual assault. The requisite elements of this offence are as follows:
a. Touching which is met by the direct or indirect application of force on another person; b. That the touching is of a sexual nature; c. That there was an intention to touch; and d. The accused knew the complainant was not consenting or was reckless or willfully blind as to the absence of consent.
R. v. G.F., 2021 SCC 20 at para 25.
[8] The accused has testified in this case. In determining whether the elements of the sexual assault have been established, I must consider the credibility and reliability of the witness evidence against the totality of the evidence and in accordance with the legal framework set out in R. v. W.(D.), [1991] 1 S.C.R. 742. I return to the W.(D.) framework again later in my decision.
[9] Credibility deals with the honesty or veracity of a witness' testimony. In other words, is the witness trying to tell the truth? Reliability has to do with the accuracy of a witness' testimony, more precisely whether the witness was able to observe, recall and recount events accurately? A witness who is not credible cannot give reliable evidence. However, a witness who is credible might still give unreliable evidence because of frailties in their ability to accurately observe, recall and recount events accurately: R. v. H.C., 2009 ONCA 56 at para 41; R. v. D.B., 2021 ONSC 8448 at para 16.
[10] A trial judge need not resolve every inconsistency in a witness’ evidence, particularly where the core of their allegations is unaffected by the inconsistency: R. v. R.A., 2017 ONCA 714 at paras 45; aff’d 2018 SCC 13; R. v. D.B. at paras 16-23. On the other hand, where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. A.M., 2014 ONCA 769 at para 13.
[11] Demeanor is a proper consideration in the evaluation of a witness's credibility but must not be treated as a controlling factor in assessing the credibility and reliability of a witness’ evidence: R. v. O.M., 2014 ONCA 503 at paras 33-35; R. v. E.H., 2020 ONCA 405 at para 91.
[12] Ultimately, the trier of fact must demonstrate that they have turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns: R. v. G.F., 2021 SCC 20 at para 82.
[13] The sequence of steps in the W.(D.) instruction suggests that the accused’s evidence be considered first, and it is not uncommon that trial judges follow this structure in their reasons. However, it is not an error for a judge to analyze the complainant’s evidence first which is what I have done in this case: R. v. Vuradin, 2013 SCC 38 at para 21; R. v. Carrière at paras 47-50.
The Complainant’s Evidence
[14] The complainant testified that on November 10, 2018, she and Mr. Needham decided to separate after a 10-year common law relationship commencing in 2009. She testified that the relationship was fraught with issues related to the accused’s drinking, anger, jealousy, and “hounding for sex”. Over the years, she had left the house several times to return to her parents. In 2018, the accused took steps to address his drinking. They made plans to marry, but by the fall of 2018, those plans fell through. On/around November 10, 2018, she went to a wedding without the accused and upon her return, the parties separated. However, they continued to co-habit in the same home until January 27, 2019, at which time the complainant went to her parents’ home with the couple’s two children.
[15] Given the complainants’ parents lived in Smith Falls, an hour outside of Ottawa, the complainant was concerned about the accused’s reaction to her leaving and that he would allege she abducted the children. Consequently, she attended the police detachment on January 27, 2019, with her father to inform the police she was leaving the marital home. She then returned to the family home in the company of her father to inform the accused she was leaving.
[16] When the complainant initially attended the police detachment on January 27th, she did not report that she had been sexually assaulted by the accused on January 10, 2019. She explained that this was because one, her primary concern at the time was to ensure the safe departure of herself and the children, and two, there were members of her family, in particular her father, who felt that she should refrain from making such a report and proceed with as calm and amicable departure as possible. This did not sit well with the complainant and on the following day, once she felt she and the children were safe, she called the police and reported the alleged sexual assault to Staff Sgt. Sean Lowell.
[17] The complainant testified that following the separation on November 10, 2018, the parties’ relationship was very strained. They had discussed the options for how they might live and co-parent in the future. The complainant had offered the father a nesting arrangement where each parent would return to the home for their parenting time, but he refused. During this period, the complainant testified she felt pressured, hounded, and stalked in her own home even though the parties were no longer in an intimate relationship. During this period, she would often sleep with their son in the master bedroom while the accused slept on the couch.
[18] According to the complainant, on January 10, 2019, she had gone upstairs to put their son to sleep. She recalls the accused also slept with her son for a while that night. Later, around 9:30 or 10 pm when the children were both asleep, she was watching tv on the couch downstairs. The accused came to the couch to lie down, but she did not want to be with him. She was tired and got off the couch and went to the master bedroom where her son was asleep. She laid down beside her son and tried to sleep. She states she was feeling very stressed at the time. About 30 minutes later, the accused came into the master bedroom. She testified that he shook her by the shoulder and told her to leave the room because he wanted to sleep beside his son. She testified that he called her a “fucking bitch” and told her she was selfish. She described him as aggressive, angry, and that his voice was gruff and mean. She did not want to awaken their son and went to sleep in her son’s room.
[19] In cross-examination, the complainant denied there had been an argument earlier. She surmised the reasons for the accused’s aggressive behaviour upon entering the master bedroom was because he was mad at her about leaving the couch. The complainant maintained that he just wanted her out of the bed. She acknowledged the accused was not drinking that night.
[20] The complainant testified that after about 20-30 minutes, the accused followed her into their son’s bedroom. She was half-asleep. She asked him what he was doing. She described him as having a coy look on his face. She testified the accused came over to the bed, climbed on top of her, and straddled her. She did not say anything but wondered why he was on top of her. He then pulled down her sweatpants 2-3 inches. She told him, “don’t” and “no” 5 or 6 times, but he went ahead and put his fingers inside her vagina. She was frozen and in shock and wondered what was going on. She continued to lie there while he fingered her and felt cold and numb. She just wanted it to be over with. About five minutes later she stated, “Fine, just fuck me.” She felt she had no option. She did not want to scream as her children were in the adjacent room. He proceeded to have sexual intercourse with her while she lay there feeling “emotionless”, “reckless” and like a “rag doll”. After a few minutes of thrusting, the accused asked her what was wrong and she replied, “Just get it over with.” The accused stopped and pulled out. She testified that she did not do anything to give him the impression that she was enjoying herself and that she had started sobbing and crying. She turned to a fetal position. The accused tried to hug her and say he was sorry and that he respected her, but she found the hugs and affection to be further attempts by him to reinitiate the sexual activity because he continued touching other parts of her body. Eventually the accused got up and off the bed, stood over her, slapped his penis on her face and laughed at her mockingly before walking out of the room.
[21] The complainant testified that after he left the room, she messaged her sister and a friend and told them that she had been molested by the accused. She remained stressed and did not sleep much that night. The next day she was scheduled to get a tattoo. Her mother was going to watch the children while the accused drove her to the appointment. She confronted the accused about the incident and asked why he had sex with her when she had said “no.” She questioned him whether he would approve someone doing that to their daughter and he said, “no” and asked why she was different. At the time, she did not report the incident to the police, but knew she had to at some point. She wanted to have a proper plan for exiting the home safely first.
[22] Two weeks later on January 27, 2019, she attended the police station. On that day, she told the accused she was going to a play date at her friend’s house. She dropped the children at her friend’s place and then attended the police station with her father. She wanted the police to know what was going on because in the past the accused had threatened to have her charged for abduction and theft of their vehicle if she moved with the children to her parent’s place. She recalled the police asking her if she was in danger and what else was happening, but that at that time she was only prepared to talk about the kids.
[23] In cross-examination, counsel put to the complainant that she never indicated to the police that she felt any concern about her and the children’s safety. The complainant responded that the father was never violent with the children, but that he had once threatened to put duct tape on one of the children. When asked why she had never mentioned this before, the complainant acknowledged she did not report this threat to the police. The complainant maintained that she had concerns about their safety and that the accused was volatile. When counsel asked again why she did not disclose safety concerns to the police, the complainant indicated she did not feel like the police could get to her home as fast as possible if something were to happen. Counsel suggested to her that the real reason she went to the police station was not because she was afraid as suggested in examination-in-chief, but to ensure she would not be in trouble for taking the children out of the jurisdiction. In response, the complainant reiterated that she wanted to ensure the kids were safe but also to ensure she wouldn’t be pulled over later by the police and accused in front of her children for doing something wrong. When pressed further as to why she did not report any safety concerns to the police, the complainant testified that she was under extreme stress and wanted to make the safest calmest decision at the time and keep things amicable with the accused to ensure he would not overreact. She acknowledged she refused the police request to attend the house with her because one, she had her father with her and two, she thought that if the police were present, the accused would have “lost his crap.”
[24] Sgt. Fillippo Flocco testified that on January 27, 2019, he was on duty at the Huntmar police station when the complainant attended with her father. The complainant informed him that she was leaving her husband, that the children were at a friend’s place, and that she was planning to move to her father’s place in Smith Falls. She wanted some information from the police and was worried the father (Mr. Needham) would report that she abducted the kids. Sgt. Flocco asked the complainant if there was a family court order in place and if there was none, told her to have a conversation with the father and try to come to an agreement around the arrangements for the children. Sgt. Flocco informed the complainant that in the absence of a family court order, the accused was entitled to call and involve the police. Sgt. Flocco testified that the complainant did not provide any details about why she was leaving the relationship but did assure him that she had no safety concerns for herself or the children. Sgt. Flocco also offered that the complainant could call the police if she wanted assistance with keeping the peace.
[25] Following the visit with the police, the complainant and her father returned to the family home at which time she told the accused she was leaving the relationship and the house with their children. The accused was not happy that she was going to her parents’ home with the children. The complainant testified that they also discussed the sexual assault in the presence of her father and that the accused apologized to her father for “what I did to her.” The complainant called the accused’s mother and told her what was happening, that she was leaving the relationship, and that the accused would need their help.
[26] In cross-examination, the complainant was shown a letter written by her father dated January 27, 2019, and provided to the accused when she attended the home to inform the accused of her departure. She agreed it was written by the father but that she had only seen it once. She did not review it before it was given to Mr. Needham or have any input on the contents. The one-page letter appears to be a heart-felt communication to the accused that the complainant’s family cares for him and wants to support both the complainant and the accused through the marital separation. The complainant did not explain if the letter was given to the accused before or after the conversation regarding the sexual assault and apology by the accused.
[27] The following day, January 28, 2019, the complainant called a phoneline for sexual assaults. She spoke to an officer, subsequently identified as Staff Sgt. Sean Lowell, and reported to him that the accused had sexually assaulted her on January 10th. During their meeting, the complainant testified that she had had numerous interactions with the accused since that time. She had no concerns about seeing Mr. Needham again and would likely see him the following day when she put her son on the school bus. At the end of her call, Sgt. Lowell scheduled her for an in-person interview. On February 1, 2019, the complainant attended the detachment and provided an audio taped interviewed to Det. Trepanier detailing the sexual assault.
[28] On cross-examination, the complainant was shown some notes found at her residence by the accused following her departure. She confirmed they were hers and likely taken after her call to the police. It referenced a 236 number which she believes was the sex assault line. She also had other notations such as “50/50”, “victim services”, “call CAS” and “school consent” which she acknowledged were likely related to her trying to figure out steps for leaving and future parenting arrangements.
[29] Counsel argues there is a discrepancy between what the complainant told Staff Sgt. Lowell which was that the accused slapped his penis on her face in the living room and what she told Det. Trepanier which was that the accused slapped his penis on her face in the bedroom. However, I don’t put much weight in this discrepancy for several reasons. First, Staff Sgt. Lowell’s notes are not the complainant’s own words, but rather the officer’s recording of her account. The complainant was on the phone when she reported this account. Had she been at the detachment, the complainant could have reviewed the officer’s notes of her account and confirmed if it was accurate. She never had such an opportunity, nor did she ever see the notes until four years later at trial when she was confronted with them. Upon reviewing them for the first time, she pointed out that the location of the penis slap was an error in the notes.
[30] Second, the complainant’s testimony that the sexual encounter occurred entirely in the son’s bedroom and not in the living room is corroborated by the accused. While the accused denies slapping the complainant’s face with his penis, he does not deny there was a sexual encounter which took place in the bedroom. Neither the complainant nor the accused suggest any sexual encounter in the living room. Both their accounts suggest the officer may have erred in his recording of the complainant’s report.
[31] The complainant testified that after reporting the sexual assault to the police, she had another conversation with the accused at the marital home that same day (January 28th) and also informed the accused’s parents that the accused had sexually assaulted her. The complainant initially stated it was a four way call on speaker phone and that her father was present. Later in cross-examination, she stated her father was in the house, but had left the room so they could have privacy. The complainant, the accused, and the accused’s parents were all on the call. She testified that after she told the accused’s parents of the sexual assault, the accused’s mother told her she should stay in the house and that “men need sex.” When counsel suggested to her that the call to the accused’s mother was in fact on January 11, 2019, the day after the sexual assault, the complainant insisted that it was on January 28th.
[32] No evidence was called from the complainant’s father about the circumstances of the visit to the detachment, the visits to the marital home on the 27th or 28th, the four-way call, the accused’s apology, or the letter he provided to Mr. Needham.
[33] In cross-examination the complainant was shown a text exchange between her and the accused sometime after she had reported the sexual assault to the police. In the text exchange, the accused had just received a call from the police and was scheduled to go in to meet with them. The accused confronted the complainant on the text stating “… just got off the phone with the police apparently you have charged with rape” to which she replied, “Ok, would you like to see the kids tonight?” The complainant testified that she responded as she did because she was not going to converse about the sexual assault over text messages. The complainant was shown other text exchanges which she acknowledged were largely about logistics around the children. She acknowledged that in many of them she was directing the accused about the arrangements and was doing so because she had always been the primary caregiver for the children.
[34] On February 5, 2019, the accused was arrested for sexual assault. The complainant served the accused with documents related to the family proceedings on February 8, 2019. She acknowledged that at the time she was seeking custody of the children because she had been the primary caregiver, but that she supported the father seeing the children. She acknowledged she contacted the Children’s Aid Society (“CAS”) but that “nothing came of it” because the children had not experienced the assault. Between February and until the parties reached a settlement on the parenting issues, she would not permit the accused to see the children unsupervised as she was concerned he would take the children.
[35] In closing submissions, defence counsel argued that the complainant’s credibility is undermined by the fact that she testified in-chief that she went to the police because of safety concerns when no such concerns were ever reported. In addition, defence counsel argues that the complainant fabricated the sexual assault in response to the father stating to her on the evening of January 27th that he did not approve of her taking the children to Smith Falls.
[36] It is important to note that the mother’s late reporting of the sexual assault does not undermine her credibility. It is a recognized myth and stereotype that women will immediately report the experience of a sexual assault or engage in avoidant behaviour following a sexual assault: R. v. A.R.J.D., 2017 ABCA 237 at paras 57, 58, and 64. Furthermore, it is clear that some sort of sexual encounter transpired between the parties on January 10, 2019, that upset the victim as both Mr. Needham and his mother testified that there was a discussion about it the following day on January 11, 2019. This evidence undermines defence counsel’s suggestion that the complainant fabricated an allegation of sexual assault on January 27th in response to the father’s stance on her departure.
[37] I also find the complainant’s explanation that she did not report the alleged sexual to the police on January 27th because she was managing, at that time, her imminent departure from the marital home to be credible. Her explanation that she was focused on her children and influenced by her family’s reluctance to report is reasonable and understandable. She was at the time relying on her parent’s support and in particular, the presence of her father to exit the home. Her perception of her father’s views is also corroborated by the tenor of her father’s letter which clearly expresses the family’s support to Mr. Needham at the time of the separation.
[38] Having said this, I do find the complainant’s insistence in examination-in-chief and again in cross-examination that she went to the police on January 27th because she was concerned about her and the children’s safety in the hands of the father undermines her credibility. The issue is not whether she did or did not feel unsafe at the time, but rather her reluctance to admit on the stand that she did not express any safety concerns to the police on January 27th or 28th. It was clear from the evidence of both officers that the complainant never reported to the police that she felt unsafe for herself or the children in the presence of the father even when they specifically raised the issue with her. It is also inconsistent with the evidence that she provided to Sgt. Lowell that she would be seeing the father the following day at the bus stop when she dropped off her son.
The Accused’s Evidence
[39] The accused agreed that he and the complainant had a volatile relationship, particularly towards the end of their time together. The complainant had left the home and gone to her parents’ place 5 or 6 times both before and after they had children, but she always came back. Mr. Needham testified there was one instance when the complainant took the children, and he called the police.
[40] Mr. Needham agreed that he had an alcohol problem and that it contributed to the demise of their relationship. In May 2018, they broke up over his alcohol issues. The complainant went to her parents’ home with the children for a day but then returned to the family home. Mr. Needham agreed to address his alcohol issues and was sober for a period of several months. During this time, he and the complainant made plans to get married, but when their relationship continued to deteriorate into the fall of 2018, those plans fell through. During this period, the couple also attended for counselling, but he only went to three sessions. In November 2018, he was supposed to attend a wedding with the complainant in Toronto, but he and the complainant had a fight, and she attended with her sister. Upon her return, the complainant informed him she wanted to break up. They continued to live together in the same house with the children until her eventual departure on January 27, 2019.
[41] Mr. Needham agreed that he and the complainant had a tumultuous relationship, particularly after their separation in November 2018. They would get into fights about the smallest things. However, he loved her very much and even after their separation, he wanted their relationship to work for both them and the children. He and the complainant discussed various arrangements for the children including her proposal for nesting, but he was not keen on that idea. He wanted to have a 50/50 arrangement, but the complainant saw herself as the primary caregiver. With respect to the history and breakdown of the relationship, Mr. Needham’s evidence was largely consistent with that of the complainant.
[42] The accused stated that following their separation, he would often sleep on the couch because he had odd working hours as a technician requiring him at times to get up at 1 am. Nonetheless, there remained times when they both slept in the master bedroom, sometimes alone, and sometimes on either side of their son.
[43] On the night in question, the complainant had gone up to put their son to bed. About 30 minutes later, he had gone up to the master bedroom to lie with his son as well. Their son was in the middle of the bed asleep, and he laid down on the opposite side. According to Mr. Needham, the complainant was awake at the time on her phone. At this point, they had a fight because the complainant told him she did not want him in the room with her. He could not recall if this was a continuation of an earlier fight downstairs. He acknowledged he was not happy about this. He then asked her to leave so he could lay with their son in the bed for a while. After she had left, he felt bad about their argument. About 10 or 15 minutes later, he went to their son’s room.
[44] The accused does not recall if the door was open to their son’s room. The complainant was inside lying on the bed on her back. The accused told the complainant he was sorry and laid down beside her. Both in-chief and in cross-examination, Mr. Needham did not deny that he wanted to reconcile with her and to pursue sexual intimacy with her. The accused stepped over her feet and got into the bed and lay with his back against the wall facing her. He then kissed her on the neck and told her he was sorry about the fight. He then kissed her on the lips, and she kissed him back. The accused explained that at this point, they were fairly close because it was a tight spot. Their son’s bed was a toddler bed. He is 6‘ 2” and she is 5’ 8”. They started touching each other. He touched her around the breasts, and she was also touching him.
[45] According to the accused, the complainant then shifted herself up towards the head of the bed and took off her jogging pants. She was not wearing any underwear. She asked him to go down on her which he understood to mean oral sex. She spread her legs, he inserted his fingers into her vagina, and he then proceeded to have oral sex with her. He believed she was enjoying it as she did express pleasure and was moaning. This went on for about four to five minutes at which time she said words to the effect of, “we can’t continue to do this.” He understood this to mean that they cannot continue having sexual relations on a day-to-day basis given they had now separated. In cross-examination, he testified she had her hands on the top of his head. He continued to have oral sex with her for another 30 seconds at which time she said “stop” which he did. He then got off the bed slowly as they were in tight quarters. He doesn’t recall if either of them said anything further at that point. He went downstairs. He brushed his teeth and watched some television. He did not see her again until later in the morning. The accused denied there was any vaginal intercourse. He also denied that he ever slapped his penis against her face. There was a railing around the bed, and it would have been difficult to accomplish such a feat.
[46] In cross-examination, the accused acknowledged that the complainant had not invited him into the room, and on the contrary, had told him earlier she did not want to be in the same room as him. Mr. Needham testified that he went in to apologize and was hoping to smooth over the situation and the relationship generally, but he did not deny that he was hoping that by doing so it would lead to sexual activity. When the Crown suggested that the complainant made it clear that she did not want to be in the same room with him, he replied, “that is not always how it works.” While he agreed that the complainant never verbally expressed consent, he understood from her words and gestures that she was agreeable to the sexual activity. These gestures included the complainant moving her feet on the small toddler bed to let him in, that she had not asked him to leave at any point, that when he kissed her neck, she turned towards him and kissed him back, and that when he touched her she was also reciprocating by putting her hands on him. When the Crown suggested that he never expressly asked to kiss her or asked for her consent to sexual activity, Mr. Needham replied that in all of his 10 years with the complainant, he has never asked the complainant if he could give her a kiss. When it was suggested that he ought to have asked for her consent in those circumstances, he replied, we were together for 10 years and that he never felt the need to ask her nor has she felt the need to ask me. When the Crown suggested that he should have sought clarification before putting his fingers in her vagina and engaging in oral sex, Mr. Needham explained that when she took her pants off, spread her legs, and asked him “to go down on her,” he understood this to mean she was asking for oral sex.
[47] Mr. Needham testified that on the following day, January 11, 2019, the complainant’s mother came over to watch the children while the complainant went to have a tattoo. Later that evening, the complainant confronted him with words to the effect of “I can’t believe you sexually assaulted me.” He responded by saying, “what are you talking about?” He called his parents. When asked why he did this, he replied that he was concerned about the seriousness of the allegations and thought he might need a lawyer. He spoke to his mother on the phone and told her what he was being accused of. He then handed the phone over to his mother to speak to the complainant. He denies there was ever a four-way call or that he ever apologized to the complainant or her father. He was angry at the time. They continued to reside together until January 27th. During this time, they had discussions about the separation and parenting arrangements, but she did not bring up the subject of a sexual assault again.
[48] Mr. Needham’s evidence regarding the timing of the telephone calls to his mother was corroborated by his mother. Evelyn Needham is 74 years of age and the mother of four sons. She recalls receiving two telephone calls. The first call was from her son that the complainant had accused him of “rape” and the second call was two weeks later when the complainant left the marital home.
[49] With respect to the first call, Ms. Needham stated that after her son called her and told her that the complainant had accused him of “rape”, he handed the phone over to her to speak to the complainant which she did. Ms. Needham told the complainant that this is a harsh word to use against someone you love. Ms. Needham asked the complainant what had had happened. The complainant had told her the accused had put his fingers in her vagina. Ms. Needham recalls asking the complainant if she thinks the accused might be a little stressed. Ms. Needham told the complainant that the accused works all the time and does not take holidays. Ms. Needham also suggested the complainant might get a job, help out a little bit, and that it might be nice for her son to come home to a clean house and a meal on the table.
[50] In cross-examination, Ms. Needham acknowledged she cared for and loved her son. She also acknowledged he had a problem with alcohol, but that he is capable of going without. She stated that her son does not drink around the children. When asked if the drinking put a strain on the relationship, Ms. Needham stated that she could not answer that question as she did not know how much he drank at home.
[51] The Crown reviewed the contents of the first call with Ms. Needham. Ms. Needham agreed she did not ask questions about the details of the sexual assault because she didn’t believe her son would do such a thing. She agreed her response to the whole discussion was to focus on the fact that her son was tired and stressed and her view that the complainant ought to get a job and help with the bills. Ms. Needham could not recall what the complainant said in response. She acknowledged she was upset. The second telephone call came towards the end of January when the complainant called to say she was leaving. It was not put to Ms. Needham if she had said in any of these telephone conversations, as suggested by the complainant, that “men need sex.”
[52] Even accounting for the possibility that Ms. Needham would have some bias as a parent and clearly believes her son would never sexually assault the complainant, I find her evidence that she received two telephone calls and the general nature of the telephone discussions to be credible. Of particular importance is that her evidence on the timing of the calls corroborates the accused’s own evidence on the timing of the calls and contradicts the complainant’s suggestion that there was a four-way call about the sexual assault between the complainant, the accused, and his parents on the January 28th where the complainant’s father was also present.
[53] With respect to the complainant’s departure, the accused testified that on Sunday January 27, 2019, the complainant told him she had a play date planned with the kids. He was expecting her to come home, but she later arrived with her father and without the kids. She told him that she was leaving. He described the complainant’s father, Mr. E, as a soft spoken man. It was not a heated discussion. The complainant’s father explained that the relationship was not working and that the kids were safe.
[54] Mr. Needham testified that the complainant’s father gave him a letter dated January 27, 2019. He did not read it until later as he was feeling distraught. Mr. Needham denies that he apologized to the complainant’s father. He did acknowledge there was a conversation that night when he asked the complainant’s father if he understood that his daughter had accused him of sexual assault. According to the accused, the complainant’s father seemed shocked by this.
[55] The accused testified that he found some handwritten notes made by the complainant which he turned over to Det. Trepanier when they called him in for an interview. The notes had markings such as “50/50”, “school consent”, “file report” and “victim services” which suggested to him that the complainant was having discussions around arrangements for the children. He testified that he realized then that the complainant had been planning to take the children away and, in his view, the sexual assault allegation had a different motive which was “kid related.”
[56] After her departure with the children, Mr. Needham did not see the complainant alone. She would only come to the house with her dad. While he was able to see the children, it was only on her terms. All the visits with the children were at public places and supervised by her parents. It was only several months later after he had obtained a family lawyer and they reached a settlement that he was able to have unsupervised visits with his children on the weekends. Mr. Needham testified that he wanted a 50/50 arrangement, but it was hard for him to get that because the children were now out of the jurisdiction in Smith Falls. Mr. Needham acknowledged that while he would have liked more parenting time, the agreement to have the children 3 of 4 weekends a month is more suited to his present work schedule and allows him more quality time with his children.
Issue 1: Assessment of the evidence under the W.(D.) Analysis
[57] The accused and the complainant each gave a diametrically opposed account of the events surrounding the sexual activity that occurred on January 10, 2019. As noted by both counsel, this is a “he said, she said” case that is to be determined on the credibility and reliability of their respective accounts.
[58] Where the accused has testified, I must analyze the evidence under the W.(D.) framework. The principles from W.(D.) as reformulated in J.H.S., 2008 SCC 30 are as follows:
i. If you believe the evidence of the accused, obviously you must acquit. ii. If after careful consideration, you are unable to decide who to believe, you must acquit. iii. If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. iv. Even if you are not left with a 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 of the guilt of the accused.
[59] In assessing the evidence of the witnesses, the law is clear that I cannot decide the case by determining which conflicting version of events is preferred. I must consider the evidence of the complainant and the accused in the context of the whole of the evidence.
[60] The accused’s evidence was externally consistent in that his explanation of the timing of events was corroborated by his mother. For example, the accused stated that the complainant confronted him about the January 10th sexual encounter on the following evening of January 11th. The accused testified that after this confrontation, he called his mother about the accusation and she spoke to the complainant. This is consistent with the mother’s evidence who testified that she received a call from Mr. Needham regarding the complainant’s accusation approximately two weeks before the complainant’s eventual departure and spoke to her about the accusation.
[61] I found the accused’s evidence was largely internally consistent. The Crown suggested that Mr. Needham said in-chief that it was 30 seconds between the time the complainant told him “we can’t keep doing this” and when she said “stop” whereas in cross-examination he acknowledged it could have been longer up to one minute and at one point maybe five minutes. I do not find this evidence on the exact time that elapsed to be determinative. The incident occurred over four years ago. Mr. Needham tried to provide as precise timelines as possible for each sexual act but as he stated in his responses after being asked this question several times, he had never thought he would have to provide a timeline for the sexual activity. What he was clear was about was that when the complainant clearly stated “stop”, he stopped.
[62] The Crown argued that Mr. Needham failed to provide clear evidence of why the complainant left the master bedroom. I disagree. He indicated they had a fight because she did not want him to be in the room. The argument was triggered when he went to lie down in the bed and she told him she did not want him to be there.
[63] In short, I did not find there to be any major discrepancies between Mr. Needham’s evidence in-chief and in cross-examination.
[64] The Crown took Mr. Needham in cross-examination through a piecemeal breakdown of each and every step he took in the course of the sexual encounter. I find Mr. Needham provided straightforward answers to these questions and explained why he did or didn’t do certain things. In doing so, I found Mr. Needham demonstrated a strong recall of the events including details about the length of the bed, the steps he took to get in and out of bed, the effect of having a railing around the bed, and the respective positions of the parties while confined in those tight quarters.
[65] I also find Mr. Needham made admissions that might not be favorable to him such as the fact that when he followed the complainant into their son’s room, he hoped he could smooth things over with her and that it might lead to sexual intimacy. Mr. Needham was also candid about his struggles with alcohol during the marriage, and the steps he had taken, particularly in 2018, to deal with the problem. Mr. Needham was frank about the fact that after the parties separated in November 2018, he was still very much in love with the complainant and hoped they could work things out. I did not find Mr. Needham’s testimony to be evasive or manufactured. On the contrary, I found his candor on these subjects lent credence to his account of the dynamics of their relationship and the events of the night.
[66] In conclusion, upon consideration of the whole of the evidence, I found Mr. Needham’s testimony to be credible and reliable. Under the W.(D.) framework, where the accused’s evidence is accepted, he is entitled to be acquitted.
Issue 2: Should the accused be convicted of sexual assault on the basis of his own evidence?
[67] The Crown argues that even if I believe the accused, I should find him guilty of sexual assault because based on his own version of events, there was an absence of consent on the part of the complainant.
[68] Consent is defined in s. 273.1(1) of the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1) of the Criminal Code. The onus is on the Crown to prove an absence of consent.
[69] In this case, the accused testified he believed the complainant was consenting to all the sexual activity he described until the moment she stated “stop”. His account, which I have accepted, is based on words and gestures directly communicated to him by the complainant up to and during the sexual activity. This evidence consists of:
- Moving her feet to allow him into the toddler bed
- Turning her head towards him when he kissed her neck
- Reciprocal kissing and touching on her part
- Removal of her own sweatpants
- Verbal request that he go down on her
[70] The Crown argues that even if one accepts the complainant engaged in these words and gestures as testified to by Mr. Needham, given the complainant told the accused earlier that she did not want to be in the same room with him, Mr. Needham should have taken further steps to ascertain express verbal consent from the complainant before kissing and touching her. In this regard, the Crown appears to rely on s. 273.2(b) of the Criminal Code which states it is not a defence to a sexual assault that the accused believed that the complainant consented to the activity where the accused “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”
[71] While this provision is usually considered as a precondition to the defence of honest but mistaken belief in communicated consent (R. v. Barton, 2019 SCC 33 at para 104), the Crown did not make this argument regarding reasonable steps in response to a defence of honest but mistaken belief in consent being raised by Mr. Needham. The defence position was that the complainant’s gestures were sufficient to constitute consent, and alternatively, even if I found that the accused ought to have ascertained express consent, the kissing and touching was sexual activity to which the legal maxim of de minimis should apply in the circumstances of this case, and the accused should not be found guilty of sexual assault for this de minimis conduct.
[72] As stated in R. v. Barton at paras 104 to 109, the reasonable steps analysis is highly fact specific inquiry: see also R. v. I.A.D., 2021 ONCA 110 at para 19. One must look at the context and what was known to the accused about the situation at the time. Furthermore, what is and is not a reasonable step to ascertain consent may vary depending on the nature of the relationship between the parties and the sexual acts involved. Where the sexual acts involved are of a more intrusive nature, the accused may be required to make specific inquiries to ensure the complainant is agreeable to the particular sexual activity in question: R. v. Barton at para 108. Similarly, where the accused and complainant do not know each other and the risk of miscommunication and misunderstanding is high, the threshold for what constitutes a reasonable step can be higher and require additional inquiries by the accused: R. v. Barton at para 108.
[73] The Supreme Court of Canada went on to state in R. v. Barton that overall, in approaching the reasonable steps analysis, trial judges should take a “purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent:” R. v. Barton at para 109.
[74] In this case, the accused and the complainant were in an intimate relationship for 10 years and while officially separated over the last few months, they continued to live as a family in the same home. They were not strangers. Mr. Needham was also clear that in all of the 10 years he had been with the complainant, he had never asked the complainant for consent to kiss her before doing so. Furthermore, Mr. Needham testified that when he kissed the complainant, she had turned around and was facing him and that she kissed him back. They also engaged in mutual touching. I find in these particular circumstances, the complainant’s gestures were not ambiguous or passive and constituted an expression of consent to the specific activity in question, namely kissing and touching. I find that the threshold for the reasonable steps requirement to kiss and touch was met notwithstanding the complainant’s earlier remark to Mr. Needham in the master bedroom.
[75] The Crown concedes that if I accept Mr. Needham’s evidence that following the kissing and touching the complainant removed her clothing and asked Mr. Needham to go down on her, then there was express consent for the digital penetration and oral sex that followed.
[76] However, the Crown argues that once the complainant stated during the oral sex “we can’t continue to do this”, the accused should have immediately stopped and sought express consent before continuing with any further oral sex. The Crown argues that the accused engaged in non-consensual activity by engaging in continued oral sex for a further 30 seconds or 1 minute until the complainant said “stop.”
[77] I find the Crown’s argument fails to adequately consider the whole of the evidence including the dynamics of the relationship during this period of separation. Both the accused and the complainant testified that their relationship was fraught with starts and stops. The complainant acknowledged she had tried to leave the relationship several times, and in several instances returned home to her parents and then came back to the house again. The accused agreed with the complainant’s evidence and also added in his own testimony that he did not want to break up with the complainant. He was still very much in love with her. In addition, Mr. Needham testified that when he went into their son’s room, he went to apologize and to also attempt to reconcile their relationship generally.
[78] I find that when one takes the whole of the evidence into consideration, the accused’s explanation that he understood the complainant’s words “we can’t continue to do this” to mean that she was referring to their relationship and that they perhaps ought not to engage in sexual intimacy when they were separated, to be reasonable. More importantly, when the complainant expressly stated “stop” 30 seconds later, words that were less ambiguous, the accused did just that. He stopped. For these reasons, I find that the accused’s continued sexual activity for a further 30 seconds was based on his continued reliance of the complainant’s earlier communicated consent.
[79] In conclusion, I find the accused not guilty of sexual assault.
[80] Should there be any discrepancies between the oral and written decision, the written decision shall prevail.
Somji J.
COURT FILE NO.: 19-DV-4755 DATE: 2023/06/22 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Paul Needham Accused REASONS FOR JUDGMENT Somji J. Released: June 23, 2023