COURT FILE NO.: 14/22 DATE: 20230728 ONTARIO SUPERIOR COURT OF JUSTICE

WARNING: Pursuant to s. 486.4(1) of the Criminal Code, any information that could identify the complainant shall not be published in any document, or broadcast or transmitted in any way.

EVERY PERSON who contravenes this warning is guilty of an offence punishable on summary conviction.

BETWEEN:

HIS MAJESTY THE KING – and – MICHAEL WILFORD

Counsel: A. Large, for the Crown C. Demelo, for the Defendant

Heard: June 12, 13 and 14, 2023 Grace J. (orally)

A. The Charges and the Trial

[1] The Crown alleges that Michael Wilford sexually assaulted the complainant, C.L.M., on February 14 and then again sometime between March 7 and 13, 2021.

[2] Following completion of the short trial, decision was reserved until today.

B. General Legal Principles

i. Reasonable Doubt

[3] Before turning to the evidence, I start with the legal principles that must be borne in mind throughout.

[4] Mr. Wilford is presumed to be innocent. He is not required to prove a thing.

[5] In order for Mr. Wilford to be found guilty of either offence, the Crown must prove every element of the charge beyond a reasonable doubt. That burden rests on the prosecution from beginning to end. It never shifts to Mr. Wilford.

[6] A reasonable doubt is not one that is a product of sympathy or prejudice. It must be based upon reason and common sense. It must be logically connected to the evidence or the lack of evidence.

[7] Proof beyond a reasonable doubt does not involve or require absolute certainty. The standard in a criminal case is not proof beyond any doubt. Nor is reasonable doubt an imaginary or frivolous reservation.

[8] However, more is required than proof of probable guilt. The standard in a criminal case is much higher than substantiation on a balance of probabilities. The Crown bears an onus which is much closer to absolute certainty than to the civil standard.

ii. Assessing Credibility

[9] The alleged sexual assaults occurred while Mr. Wilford and C.L.M. were alone.

[10] Corroboration of the evidence of a complainant is not needed for there to be a conviction. [1] Truthful and reliable evidence of the alleged victim of a crime can and often does meet the standard of proof beyond a reasonable doubt.

[11] Mr. Wilford testified during this trial despite having no obligation to do so. I will discuss his evidence in some detail during the course of these reasons. For now, it is sufficient to note that Mr. Wilford maintains C.L.M. consented to the sexual activity that underlies count one. Alternatively, he submits he had an honest but mistaken belief that she had communicated consent.

[12] Mr. Wilford’s response to count two is a simple one. He denies that the events described by C.L.M. that form the foundation for that charge occurred.

[13] Because Mr. Wilford testified, these principles apply. First, if the court believes Mr. Wilford’s evidence and, in law, it constitutes a defence to the charge, he must be found not guilty of the offence.

[14] Second, if, after a careful consideration of all the evidence, the court is unable to decide whom to believe, the court must find Mr. Wilford not guilty because the Crown will have failed to prove his guilt beyond a reasonable doubt: R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. H.B., [2016] O. J. No. 1365 (S.C.J.) at paras. 40-43.

[15] Third, even if Mr. Wilford’s evidence is not believed, if it leaves the court with a reasonable doubt about his guilt or about an essential element of the charge, he must be found not guilty. A conviction does not necessarily follow a finding that the testimony of the complainant is more credible than that provided by the accused. [2]

[16] Fourth, even if Mr. Wilford’s evidence does not leave the court with a reasonable doubt concerning his guilt or about an essential element of the offence, a finding of guilt can only be made and a conviction entered if the rest of the evidence that the court does accept proves Mr. Wilford’s guilt beyond a reasonable doubt. [3]

[17] The evidence introduced by the Crown on the one hand and by the defence on the other are not part of a credibility contest. A trier of fact may believe and accept as reliable all, some or none of the testimony of each witness. The court’s task is not to accept one version of events and reject the other. The court must consider, examine, assess and weigh all of the evidence. If the court is left with a reasonable doubt concerning guilt, the accused is entitled to its benefit. If the Crown’s case lends itself only to a conclusion the defendant is likely guilty, an acquittal must be entered: R. v. Starr, 2000 SCC 40. Nothing less than proof beyond a reasonable doubt will do.

[18] In cases of this kind, there is no place for assumptions as to what constitutes sexual assault, how it will occur, what kind of person may be the victim or perpetrator of such an act, or what a person who is being, or has been, sexually assaulted will do or say. Experience tells the courts that there is no stereotype for sexual assault, persons who commit it, or persons who are victims of such offences. The crime can take place in almost any circumstances between all kinds of different people who react in a variety of ways.

[19] On the other hand, complainants are not immune from misremembering, from exaggeration or untruthfulness.

[20] Raised as an issue in this case, is when and how C.L.M.’s complaint came to be. The court must bear in mind that there is no fixed rule on how people who are the victims of a sexual offence will behave. There are many possible reasons for delay, including embarrassment, fear, guilt or a lack of understanding and knowledge.

[21] In assessing the credibility and reliability of the testimony of an alleged victim of a sexual offence, the timing of the complaint is simply one circumstance to consider. Standing alone, a delay in disclosure will never mean a charge is unproven, any more than an immediate complaint necessarily establishes its commission.

C. The Evidence

[22] Mr. Wilford and C.L.M. were in a romantic relationship from approximately May 2020 until some time in March 2021.

[23] The two incidents that underlie the criminal charges before the court were said to have occurred near the end of that period. The complainant said that they occurred in her bedroom on the second floor of a townhouse she was renting in Ingersoll, Ontario. I start with count one.

[24] C.L.M. remembered the day was on or near Valentine’s Day. The complainant and accused were in bed sometime in the late afternoon or evening hours. She remembered conversation and cuddling.

[25] That, she said, turned into consensual sexual intercourse. When asked during direct examination what that meant to her, C.L.M. responded by saying she consented to sex and “everything that comes along with having sex.” When asked to provide a further explanation, she mentioned kissing and penetration.

[26] C.L.M. testified there was no discussion before sexual activity commenced. The couple had been holding hands. Caressing followed. At some point, each of the participants removed their own clothing. More intimate erotic touching and then sexual intercourse followed. When cross-examined, C.L.M. said she thought she had been the initiator.

[27] In cross-examination, C.L.M. told the court that while on the main floor of the townhouse, the parties had agreed to go upstairs to have sexual intercourse. However, they had not discussed what other things might occur during their encounter.

[28] During direct examination, the complainant was asked to explain when the sexual activity she had consented to became non-consensual. C.L.M. said that occurred while the couple was engaged in sexual intercourse. While Mr. Wilford was lying on top of the front of her body, he placed an open hand on her throat.

[29] In response to a question posed by Mr. Wilford’s lawyer, C.L.M. said that surprised her because he had not, in any context, ever put his hand on her throat before. She agreed that the placement of the accused’s hand occurred after he had moved it up her chest.

[30] Although he was not squeezing at that time, the placement of Mr. Wilford’s hand caused C.L.M. to tell him that made her uncomfortable. Despite that statement, Mr. Wilford began to apply pressure to her throat.

[31] C.L.M. said the accused continued even after she expressed her discomfort for a second time and asked him to stop. On this occasion he responded. She remembered being told that she would have to enjoy it because the thought of her passing out caused Mr. Wilford to be sexually aroused. At that moment, he began to squeeze her throat even more.

[32] The complainant said the pressure that was being applied “slightly cut off my airway but not enough where I couldn’t speak or defend myself”. She said that Mr. Wilford did not lessen the pressure and remove his hand until she kneed him in the upper thigh. At that point, he stopped, got off the bed and left the room.

[33] When cross-examined, C.L.M. was taken to a portion of the transcript of the May 18, 2021, interview conducted by P-C Feiteira. She was asked to describe the Valentine’s Day incident in her own words. C.L.M. answered:

We had just got the kids to bed … It had started off as consensual sex. We had both decided that what [sic] we were going to do, and it was in the midst of it all that he had decided that he was going to try and choke me, and how it had started was we were in the middle of having intercourse and then all of a sudden he kind of just went like this with his hand and then just kind of held it there and didn’t squeeze at first but then I could slowly start feeling him squeezing and I’m like what are you doing and that’s when he said, well, I want to see you pass out while I’m … having sex with you and I kind of went into shock. I’m like no, that’s not okay. You’re not going to choke me and that’s when he had went on saying oh, well you’ll like it and everything like that and I’m like no, I don’t. Like I don’t like it. Will you stop? And that’s when he continued to start squeezing harder and then it got to the point where I was like okay, well clearly, you’re not going to stop and that’s when I kicked him in the thigh … [4]

[34] When asked about physical injuries, C.L.M. said that her neck was slightly red. Fingerprints were visible. However, there was no bruising.

[35] Mr. Wilford’s version of events follows.

[36] He remembered lying on the couch on the main floor watching television. He asked if C.L.M. wanted to move upstairs. Sexual activity was in his mind.

[37] Once there, foreplay progressed to the point that the complainant unzipped his pants and undressed herself. Oral sex came next. Then sexual intercourse.

[38] Mr. Wilford said it was at that time that he ran a hand up C.L.M.’s chest. He said he put it around her throat. After about three to five seconds, she coughed and tapped his arm.

[39] The accused said he stopped and asked about her well-being. C.L.M. said that he was applying too much pressure to her throat. He said he got up and returned with a drink which he gave to C.L.M.

[40] When asked if she wanted to continue, she responded affirmatively provided there was no more choking. He said that sexual intercourse then resumed and was completed. After cleaning up, he remembered the couple cuddling and falling asleep together.

[41] C.L.M. was asked about the points in Mr. Wilford’s narrative that differed from her own. Invariably, she said those portions of his account were incorrect.

[42] During cross-examination, Mr. Wilford agreed that on the day in question, choking was not a subject the parties discussed in advance. He agreed with the Crown’s suggestion that he thought C.L.M. had consented to that activity because she did not object as Mr. Wilford moved his hand up her chest.

[43] The defendant rejected suggestions by the Crown that he refused to stop choking C.L.M. because it aroused him and that he only stopped when the complainant kneed him.

[44] That brings me to the evidence relating to count two of the indictment.

[45] C.L.M. thought the incident occurred during the second week of March 2021. She remembered asking Mr. Wilford to leave her residence soon afterward.

[46] The location was the same. She had gone to bed first. She said she was dressed for the night: an oversize t-shirt, plaid pajama bottoms and underwear. Mr. Wilford joined her about an hour later. After a brief conversation, C.L.M. remembered rolling onto her right side, while the accused turned onto his left. The meant that she was facing away from and Mr. Wilford toward the nearest wall.

[47] During cross-examination, C.L.M. was taken to a typed narrative she had prepared some time ago. In it, she had noted that Mr. Wilford was facing the opposite direction.

[48] About an hour or so later, she awoke. She said Mr. Wilford rolled toward her. He began caressing her upper thigh and slowly moved higher and then lower, first over and then under her t-shirt and finally her pajama bottoms.

[49] C.L.M. said that the final placement of Mr. Wilford’s hand made her begin to feel uncomfortable. She rolled onto her back and opened her eyes in an effort to make it appear that she was in the process of waking. At that point, Mr. Wilford quickly extracted his hand and rolled away from her. C.L.M. continued to lie on her back.

[50] A few minutes passed. While trying to fall asleep again, she became aware of movement. Mr. Wilford had gotten up. He took hold of her pajama bottoms and underwear and lowered them to about knee level. By this point, he was straddling her.

[51] Although awake, C.L.M.’s eyes remained closed. Mr. Wilford began performing oral sex. At first, she remained motionless. She made no sound. As the activity intensified, she said she moved in order to make him aware that she was alert and not a willing participant.

[52] At first, she felt him shimmy back on the bed. However, soon afterward he returned. Her pajama bottoms and underwear were fully removed. She heard them land on the floor. Digital penetration and full sexual intercourse followed. C.L.M. said that she continued to lie there and to remain still. Once again, she did not make a sound. Her eyes remained closed. She thought she was in shock.

[53] At trial, the complainant said Mr. Wilford’s movement was initially gentle but it intensified. She felt pain. Tears followed. She felt something wet trickle down her leg. She said she knew and later verified that it was her own blood. The sexual activity stopped when the complainant moved suddenly. That movement caused Mr. Wilford to disengage and run into the bathroom.

[54] When cross-examined, C.L.M. was once again taken to the typed statement she had prepared. In that document, she said that Mr. Wilford had “inserted his penis into my vagina aggressively.”

[55] Mr. Wilford was asked about the second incident C.L.M. described.

[56] He said that as a “gamer” he often came to bed after her. Sometimes, he would wake C.L.M. up and sexual activity, including sexual intercourse, would occur if she was willing to participate. On other occasions, the parties simply said goodnight. Occasionally, they cuddled or caressed each other.

[57] However, he had no memory of or familiarity with any incident of the kind C.L.M. described. He responded in the negative when asked if he had engaged in any non-consensual sexual activity with her in March 2021. During direct examination, he remembered being out of the residence by the end of the first week of that month. When cross-examined, Mr. Wilford agreed that may have occurred a week or two later.

[58] Counsel for the Crown noted that approximately two months passed after the second alleged incident before C.L.M. spoke to police. When asked to explain, the complainant said she was not mentally prepared to speak up beforehand. She said her primary concern was to get Mr. Wilford out of her residence.

[59] The issue of delayed disclosure was addressed by Mr. Wilford’s counsel too. Defence counsel suggested that the parties’ difficulties did not initially result in a clean break. There was regular communication. There was a visit to a park. Ice cream was consumed. C.L.M. agreed to help Mr. Wilford dye his hair. The complainant disagreed with all of these suggestions.

[60] C.L.M. acknowledged that Mr. Wilford visited her residence on May 15, 2021. Some text messages sent by Mr. Wilford were shown to her. C.L.M. said she did not recall receiving them.

[61] The complainant said that her new romantic partner, Gary and Gary’s son, Lawrence, were with her when Mr. Wilford arrived.

[62] Lawrence answered the door. Conversations followed involving Mr. Wilford, Gary and C.L.M. She recalled that Mr. Wilford was told of her new relationship. He then asked for the return of his belongings and left when told to do so.

[63] She denied defence counsel’s suggestion that Mr. Wilford had tried to show Gary messages he and C.L.M. had exchanged. She said she did not grab Mr. Wilford’s cell phone and delete those communications.

[64] Mr. Wilford offered a materially different version of events.

[65] He said the parties had been arguing a lot. In early March 2021, C.L.M. abruptly told him that she had called his mother and asked her to come over and pick him up. That marked the start of the parties’ separation.

[66] Nonetheless, they continued to communicate regularly. He felt that things improved over the course of a few weeks. At some point, they met in-person.

[67] Some time later, he asked C.L.M. to help him dye his hair. At first, she said she would have to think about it. Mr. Wilford did not receive a reply to subsequent messages. Eventually, the complainant surfaced.

[68] Mr. Wilford sent further messages. The following day, C.L.M. apologized and indicated a willingness to provide the requested assistance.

[69] The pattern of one-sided communication was repeated. What he described as being the final series of texts sent by Mr. Wilford to C.L.M. were shown to him. He said he sent the first set as he neared C.L.M.’s residence. There was no response.

[70] He described the events that followed. Gary’s son opened the door. Mr. Wilford asked to see C.L.M. Soon afterward, he was confronted by Gary. He remembered being forcefully told he was not welcome.

[71] Mr. Wilford said he tried to show Gary messages he and the complainant had exchanged. C.L.M. stopped him from doing so by grabbing his cell phone. He testified that C.L.M. went into the living room. After about two to four-minutes she tossed the device on a loveseat, told Mr. Wilford to retrieve it and leave.

[72] Thereafter, he realized that messages the parties had exchanged had been deleted.

[73] He remembered returning to his residence in Woodstock. His hope for reconciliation had been dashed.

[74] During the weekend that followed, the parties exchanged further messages on Snapchat. A request for the return of personal property was made then and in a subsequent text. Thereafter, Mr. Wilford sought police assistance.

[75] C.L.M. acknowledged that the police attended at her home on May 17, 2021. The visit was unexpected. She agreed she was told it followed a request from Mr. Wilford for help in retrieving items of personal property.

[76] P-C Feiteira was the attending officer. She testified briefly. When told of the reason for the visit by police, C.L.M. said that Mr. Wilford was petty and upset that his relationship with the complainant had ended. During cross-examination, the complainant had denied saying the accused was acting in the fashion the officer had recorded.

[77] P-C Feiteira confirmed the allegations underlying the charges Mr. Wilford faces were communicated during the interaction with the complainant.

[78] C.L.M. rejected the defence suggestion that they were fabricated because she had been caught having a romantic relationship with two men at the same time.

D. Analysis and Decision

i. The Elements of the Offences

[79] For Mr. Wilford to be found guilty of sexual assault, the Crown must prove four essential elements:

a. First, that Mr. Wilford touched C.L.M. intentionally; b. Second, that the touching by Mr. Wilford took place in circumstances of a sexual nature; c. Third, that C.L.M. did not consent to the sexual activity in question; and d. Fourth, that Mr. Wilford knew that C.L.M. did not consent to the sexual activity in question.

ii. The Elements of the Alleged Offences in Dispute

[80] To help frame the issues, I will briefly mention each of the two charges.

[81] With respect to count one on the indictment, it is undisputed that the parties engaged in consensual sexual intercourse during the late evening hours of or near February 14, 2021.

[82] The charge relates to the presence of one of Mr. Wilford’s hands around and the application of pressure to C.L.M.’s throat. “Choking” was the word used during the trial. No one took issue with its use.

[83] I pause to note that a person who chokes a complainant while committing a sexual assault is guilty of an even more serious offence under s. 272(1)(c.1) of the Criminal Code. However, Mr. Wilford has not been accused of that crime. In this case, the Crown maintains that the act of choking constituted, itself, the sexual assault.

[84] C.L.M. alleges that Mr. Wilford applied pressure to and then intensified his grip on her throat without her consent and even after she told him to stop. The prosecution argues that what transpired was, to the defendant’s knowledge, unexpected and unrequested.

[85] Mr. Wilford maintains that aspect of the encounter was within the range of activities C.L.M. had agreed to engage in and that he immediately and permanently stopped applying force of that kind upon becoming aware that her consent was, effectively, being withdrawn.

[86] Alternatively, the defence submits that Mr. Wilford held an honest but mistaken belief that the complainant had communicated her consent to the activity in question.

[87] Consequently, in respect of count one of the indictment, the second element (whether the touching in question was of a sexual nature), third (whether C.L.M. consented) and fourth elements (whether Mr. Wilford knew of any lack of consent) are in issue and will be addressed in turn.

[88] With respect to count two, according to C.L.M., Mr. Wilford subjected her to various sexual activities during a period of silence and passivity. Consent was neither sought, nor provided. The accused says the described incident simply did not occur.

[89] With that, I return to the three elements of count one that are in issue.

Count one, 2nd Element – Was the touching in question of a sexual nature?

[90] I start with this question: was the touching in question of a sexual nature?

[91] Section 271 of the Criminal Code simply provides that everyone who commits a sexual assault is guilty of an offence. The phrase “sexual assault” is not defined.

[92] Pursuant to s. 265(1) of the statute, an “assault” occurs in one of three circumstances, including when a person intentionally applies force to another, directly or indirectly, without that other person’s consent. [5]

[93] The intentional application of force to another is the first essential element of the offence s. 271 creates. That aspect is not in dispute.

[94] However, as is clear from the charging section, the Crown must also prove that the assault was of an objectively sexual nature: R. v. G.F., 2021 SCC 20, at para. 25.

[95] That requires consideration of all relevant circumstances, including: (i) the body part touched; (ii) the nature of the contact; (iii) any words or gestures; and (iv) the intent and purpose of the accused, including the presence or absence of sexual gratification: R. v. B.J.T., 2019 ONCA 694, at para. 55. [6]

[96] As Osborne J.A. said in R. v. V. (K.B.) (1992), 71 C.C.C. (3d) 65 (Ont. C.A.), at p. 70:

Parliament has criminalized sexual assault because it represents an unacceptable intrusion upon, or violation of, the victim’s sexual privacy or integrity. [7]

[97] In this case, what was described as “choking” occurred while the parties were engaging in sexual intercourse and after the defendant ran his hand up C.L.M.’s chest. According to C.L.M., Mr. Wilford told her that it heightened his level of arousal. I accept words to that effect were said. Even if not the subject of comment, the movement, grip and squeezing of C.L.M.’s throat, occurred during, was an integral part of and added enjoyment to Mr. Wilford’s sexual experience.

[98] After considering all of the circumstances, I am satisfied beyond a reasonable doubt that the intentional touching in question was, objectively, of a sexual nature.

Count one, 3rd Element – Did C.L.M. consent to the sexual activity in question?

[99] I turn to the issue of consent.

[100] “Consent” is defined in s. 273.1(1) of the Criminal Code. For the purposes of various sections, including s. 271, it means:

… the voluntary agreement of the complainant to agree to engage in the sexual activity in question.

[101] Section 273(1.1) of the statute provides that:

Consent must be present at the time the sexual activity in question takes place.

[102] In R. v. G.F., 2021 SCC 20, supra, Karakatsanis J. provided this helpful summary of the applicable principles when she wrote in part, at para. 29:

… This Court’s jurisprudence establishes that whether or not the complainant consented is a purely subjective analysis, determined by reference to the complainant’s internal state of mind at the time of the touching … At the actus reus stage, consent means that the complainant, in their mind, agreed to the sexual touching taking place … Consent requires “the conscious agreement of the complainant to engage in every sexual act in a particular encounter” … Furthermore, consent is not considered in the abstract but must be linked to the sexual activity in question … [Citations omitted] [8]

[103] A passage drawn from R. v. Barton, 2019 SCC 33, at para. 88 (“Barton”) is of assistance too. There, Moldaver J. said:

… “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, [and] the “sexual nature of the activity” …

[104] The time at which consent is required was addressed by the Supreme Court of Canada in R. v. A. (J.), 2011 SCC 28. Writing for the majority, McLachlin C.J.C. said, at paras. 46 and 47:

The only relevant period of time for the complainant’s consent is while touching is occurring…The complainant’s view towards the touching before or after are not directly relevant …

The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault … [Citations omitted].

[105] As noted earlier, when examined by the Crown, C.L.M. said she consented to sexual intercourse and “everything that comes along with having sex.” I accept that thought was in her mind. However, there was no suggestion those words were ever uttered.

[106] During cross-examination, C.L.M. acknowledged that by February 2021 the parties did not feel the need to have an explicit discussion about their sexual activity.

[107] Counsel for the defendant submitted that in the circumstances of this case, the precise parameters of the sexual activities in which the parties agreed to participate was “ambiguous”.

[108] What the parties engaged in leading up to and including sexual intercourse is not in issue in this case. The parties agree all of that activity was consensual.

[109] Nor did C.L.M. testify that the initial placement of Mr. Wilford’s hand on her chest or even her neck was without her consent.

[110] However, she told the court that was where she drew the line. Her agreement did not extend to the application of pressure to her throat; pressure which, to some extent she said, impeded her airway.

[111] As noted earlier, C.L.M. testified that she objected, asked Mr. Wilford to stop and had to use physical force when her words were not only disregarded but increased force was applied. That, she said, ended the encounter.

[112] In his narrative, Mr. Wilford also described the movement of his hand up C.L.M.’s chest to her neck. He said that it had been there for three to five seconds before he felt C.L.M. tap him on the arm and cough. He did not dispute, in any way, the fact pressure had been applied. He acknowledged that C.L.M. told him that he had been pressing too hard.

[113] According to Mr. Wilford, C.L.M.’s tap and cough caused him to immediately respond. He stopped. He checked on C.L.M.’s welfare. He provided her with a drink. He asked if she wanted sexual activity to continue, acted within the limits of her affirmative response and enjoyed quiet time with C.L.M. after the encounter had run its course.

[114] The defence suggestion there was a degree of ambiguity that flowed from the parties’ words and conduct has merit. Few words were spoken. Precisely what the parties would do was simply but unsurprisingly, not discussed.

[115] Nonetheless, that observation does not take us very far. While I recognize the parties gave contradictory testimony concerning when, why and how this physical interaction ended, they agree that C.L.M. did not consent to being choked in words.

[116] What about by conduct?

[117] Writing on behalf of the majority of the court in Barton, 2019 SCC 33, Moldaver J. said, at para. 93:

Prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity at the time it occurred.

[118] That proposition must not be read in isolation. It was not intended to limit, let alone override, provisions of the Criminal Code relating to prior sexual activity and consent. In fact, the applicable principles were neatly summarized later in the majority’s judgment. At para. 118, Moldaver J. said:

… As a matter of law, consent must be specifically renewed – and communicated – for each sexual act. Moreover, a belief that the complainant could give broad advance consent to whatever the accused wanted to do to her is a mistake of law. Finally, the inference that the complainant’s past sexual activities, by reason of their sexual nature, may make it more likely that she consented to the sexual activities in question … is also a mistake of law.

[119] Mistakes of law do not afford a defence: Barton, 2019 SCC 33, supra, at paras. 93 and 116.

[120] I end this part of the legal analysis with this passage from the reasons of the majority in R. v. Goldfinch, 2019 SCC 38. At para. 74, Karakatsanis J. emphasized that:

… No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past…

[121] No witness described anything C.L.M. did during the sexual encounter that could be construed as consent to the application of pressure to her neck generally or throat specifically.

[122] In this case, I do not agree that an admittedly dull, shadowy and undefined boundary could possibly extend to choking. During cross-examination, Mr. Wilford fairly conceded that activity is or can be invasive and dangerous. Unquestionably, C.L.M. was adversely affected as a result of where and how force was applied to her throat. Even if it were possible in law, consent to choking should not and cannot be implied or inferred from “ambiguity” concerning the scope of contemplated sexual activity.

[123] With respect to this essential element, I am satisfied beyond a reasonable doubt that C.L.M. did not consent to being choked during the parties’ encounter on or about February 14, 2021.

Count one, 4th Element - Honest but Mistaken Belief in Communicated Consent

[124] That brings me to the final element. Has the Crown proven that Mr. Wilford knew C.L.M. did not consent to the sexual activity in question?

[125] It is Mr. Wilford’s position that he honestly believed that C.L.M. communicated her consent to choking because of the ambiguity to which I have referred.

[126] It is in that context that Mr. Wilford relies on R. v. Davis, [1999] 3 S.C.R. 759. At para. 80, Chief Justice Lamer explained that the defence of honest but mistaken belief in consent:

… is simply a denial of the mens rea of sexual assault … The mens rea requires the accused to intend the touching and to know of, or to be reckless or wilfully blind as to the complainant’s lack of consent … In some circumstances it is possible for the complainant not to consent to the sexual touching but for the accused to honestly but mistakenly believe that the complainant consented. In these circumstances, the actus reus of the offence is established, but the mens rea is not.

[127] The law has evolved. The description of the defence has been supplemented and is now referred to as honest but mistaken belief in communicated consent: Barton, 2019 SCC 33, supra, at paras. 91-92. [9] When raised, s. 273.2 of the Criminal Code is engaged.

[128] It is not a defence that the accused believed the complainant consented to the activity that forms the subject-matter of a charge under s. 271 if any of the subsections of s. 273.2 apply.

[129] Two of them bear mention in this case. First, the defence is not available where the accused failed to take reasonable steps, in the circumstances then known to him, to ascertain that the complainant was consenting: s. 273.2(b).

[130] As the majority said in Barton in the context of s. 273.2(b) of the Criminal Code:

… the reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”. [10]

[131] Second, it can have no application if there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct: s. 273.2(c).

[132] In the previous section of these reasons, I concluded there is no evidence that C.L.M.’s voluntary agreement to choking was affirmatively expressed by words or actively expressed by conduct.

[133] That leaves s. 273.2(b). Under that subsection, there cannot be an honest belief that the alleged victim communicated consent unless an accused person took reasonable steps in the circumstances known to them at the time to find out whether the complainant consented.

[134] The inquiry is “highly fact-specific”: Barton, 2019 SCC 33, supra, at para. 106. However, as the majority of the Supreme Court of Canada explained, the phrase “reasonable steps” does not include:

… the complainant’s silence, passivity or ambiguous conduct … Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step … Accordingly, an accused’s attempt to “test the waters” by reckless or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step … [11]

[135] In my view, the evidence in this case does not allow Mr. Wilford to sidestep the obstacle s. 273.2(c) of the Criminal Code creates. The specific activity in question, choking, was not discussed. Ambiguity is what the defendant relied upon in the context of consent. It was insufficient there and is in this context too. C.L.M.’s silence and passivity as Mr. Wilford ran his hand up her body provides him with no additional assistance. Nor does the fact that, according to his evidence, he had applied pressure to her throat for three to five seconds before reacting. I return to Barton, 2019 SCC 33, supra, at para. 118. There, Moldaver J. wrote:

… a belief that the absence of signs of disagreement could be substituted for affirmative communication of consent is a mistake of law … Further, a belief that … the accused’s own speculation about what was going through the complainant’s mind could be substituted for communicated consent to the sexual activity in question at the time is a mistake of law … Moreover, a belief that the complainant could give broad advance consent to whatever the accused wanted to do to her is a mistake of law …

[136] According to Mr. Wilford, he was attentive, responsive and thoughtful when C.L.M. signalled her discomfort. Exhibition of those traits was required before pressure was applied to his then partner’s neck and throat.

[137] Based on the evidence introduced at trial, Mr. Wilford took no steps to find out whether C.L.M. consented to being choked, let alone reasonable ones. Everything relied upon by the accused in support of this defence fits within the category of a mistake of law.

[138] I am satisfied beyond a reasonable doubt that Mr. Wilford knew that choking was something C.L.M. had not agreed to on the night in question.

iii. Count Two

[139] As noted earlier, C.L.M. provided a detailed account of the events underlying count two of the indictment. In short, C.L.M. alleges that on a night in March 2021 and without her consent, the accused used his hand to explore under her pajama bottoms and then, soon afterward, performed oral sex on and then engaged in sexual intercourse with her.

[140] Mr. Wilford alleges that the event the complainant described did not occur.

[141] The Crown acknowledged the existence of minor inconsistencies in the complainant’s testimony. I have tried to summarize them earlier in these reasons.

[142] However, the prosecution argued that overall, C.L.M.’s testimony was unshaken and had the ring of truth and should be accepted as a truthful and accurate account.

[143] While readily acknowledging the principles set forth in R. v. W. (D.), [1991] 1 S.C.R. 742, the Crown relies on an often cited and quoted passage from R. v. J.J.R.D.. At para. 53, Doherty J.A. said:

… an outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [12]

[144] Mr. Wilford’s counsel argued that C.L.M.’s account did not have an air of reality. It may have been unusual but with respect, that does not mean her version was not truthful or accurate. To think otherwise is to invoke assumptions and stereotypes the court is to avoid.

[145] The fact that C.L.M. did not seek out the police to complain about the matter now before the court is not determinative. In direct examination, the complainant said she was not mentally prepared to speak earlier. She said she was in shock and that her primary concern was getting Mr. Wilford out of her house.

[146] As I understood it, she attributed her decision to come forward to flashbacks that were adversely affecting her physically and mentally. She said it felt that he could walk away while she was scarred for life.

[147] A more complete story emerged in cross-examination.

[148] The fact and frequency of the parties’ post-break-up communications may not have been particularly important but the May 15, 2021 incident was significant.

[149] According to the complainant, Mr. Wilford’s arrival was unexpected. She was with a new romantic partner and for the first time, Mr. Wilford learned that she had moved on.

[150] Yet, according to C.L.M., the visit was relatively uneventful. Bluntly, I do not accept that part of her narrative.

[151] I recognize the parties were not engaged in a credibility contest. I will simply say that Mr. Wilford’s version of the events leading up, during and immediately following his attendance at C.L.M.’s residence rang true.

[152] I believed Mr. Wilford’s evidence that there was a degree of mayhem, that he came to know, for the first time, that C.L.M. had moved on and that he was ready, willing and able to try to make sure that he hurt C.L.M. emotionally too. That was why he offered to show her new partner things he had stored on his cell phone.

[153] That brings me to P-C Feiteira’s attendance at C.L.M.’s residence on May 17, 2021. During cross-examination, C.L.M. testified that she had told Mr. Wilford that his property would be returned during the May 15 visit.

[154] If that was so, there would have been no reason for the involvement of the police. Further, if an such an assurance had been provided, why didn’t C.L.M. tell the officer her time had been wasted? Instead, P-C Feiteira made a record of C.L.M.’s statement that Mr. Wilford was being petty; a comment C.L.M. denied making at trial.

[155] None of what I have written means that what C.L.M. reported was fabricated or exaggerated. However, C.L.M.’s defensiveness in cross-examination, frequent lack of recall and occasional misplaced disagreement, made her detailed account of the second incident seem more like a compilation, adaptation and at least in part, a rewriting of a collection of experiences, rather than a truthful and accurate recitation of something that had actually happened.

[156] Furthermore, and crucially, I believed Mr. Wilford’s simple denial. Providing his version of events seemed to be a cathartic process for him. He was anxious to testify. His evidence on this point did not seem insincere or tactical. It seemed to me that this event did not sound remotely familiar.

[157] In respect of count two of the indictment, I am left with a healthy reasonable doubt that the alleged event occurred.

E. Conclusion

[158] For the reasons given, I am satisfied that each of the required elements of count one of the indictment have been established to the criminal standard of proof. Consequently, I find Mr. Wilford guilty of sexual assault, contrary to s. 271 of the Criminal Code and a conviction on that charge will be entered.

[159] However, I reach the opposition conclusion in respect of count two. This charge has not been proven beyond a reasonable doubt. Consequently, I find Mr. Wilford not guilty of it.

“Justice A.D. Grace” Grace J. Delivered: July 28, 2023 (Orally)