BARRIE COURT FILE NO .: CR-21-104 DATE: October 11, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King – and – Kyle Silveira, Defendant
Counsel: J. Janiuk, for the Crown S. Menzies, for the Defendant
HEARD: September 26-28, 2023
Reasons for Judgment
LEIBOVICH J.
[1] Mr. Silveira is charged with sexually assaulting SB on October 9, 2018. The trial took place before myself, sitting without a jury, and was heard over three days. The matter was adjourned to today’s date for my decision. There was no dispute amongst the parties that SB and Mr. Silveira first met while attending TFC soccer games. The two agreed to meet on October 9, 2018. They had sexual intercourse at Mr. Silveira’s parents’ house in Innisfil. SB testified that she did not consent to having sexual intercourse, she was crying and told Mr. Silveira no multiple times. Mr. Silveira testified that the complainant consented to having sexual intercourse and that she initiated the activity.
[2] It is the defence’s position that, applying the principles set out in R. v. W.(D.), I should accept Mr. Silveira’s testimony or that it should at least raise a reasonable doubt. Furthermore, the defence submits, there were issues with the complainant’s testimony and it was not sufficiently credible or reliable to allow me to be satisfied beyond a reasonable doubt of Mr. Silveira’s guilt. The Crown submits otherwise and argues that I should reject the accused’s evidence and it should not raise a reasonable doubt given the contradictions with his police statement. Furthermore, the Crown submits that SB’s evidence was credible and reliable and I should be satisfied of Mr. Silveira’s guilt beyond a reasonable doubt.
Evidence Led at Trial
[3] SB was the sole Crown witness. Mr. Silveira testified for the defence, along with his father; John Silveira and a friend, Mr. MacNeil. SB and Mr. Silveira were the only people at Mr. Silveira’s house when the sexual activity took place. Mr. John Silveira testified about the layout of the house and the ability to see the accused’s bedroom from the bathroom doorway. Mr. MacNeil testified that SB picked up the accused from Mr. MacNeil’s house and that she spent an hour to two inside the house with him, his girlfriend and the accused before leaving with the accused to attend to the accused’s parents’ house.
SB and Mr. Silveira Meet
[4] The complainant SB testified. She was 26 at the time of trial. The incident occurred on October 9, 2018. SB testified that she met Mr. Silveira at TFC games. She would attend frequently with her uncle and mother and her uncle knew Mr. Silveira’s family who also had season tickets. She was unsure when she met him.
[5] SB testified that she and Mr. Silveira would talk about soccer and smoke cigarettes together at the break, along with her uncle. In cross-examination, she testified that she only had a cigarette once with just Mr. Silveira. SB testified that they exchanged numbers, snapchat details and at some point, Instagram information. She believes that this occurred in the 2017 season. She testified that their relationship at the games grew stronger. At the games, Mr. Silveira grew more flirtatious and said he was interested in her. She responded by asking “how you don’t even know me.” SB testified that she was curious about Mr. Silveira. SB described Mr. Silveira as being flirting with her the entire 2018 season.
[6] In cross-examination, SB testified that she was curious about Mr. Silveira and wanted to get to know him better. She knew that he was interested in her beyond a friend. Her uncle joked about Mr. Silveira being her boyfriend.
[7] Mr. Silveira similarly testified that he met the complainant at the TFC games. He believed that it was in 2017, the year that Toronto won the championship. He testified that they would have a cigarette together at half times or if there was a washout. 90% of the time her uncle would have a cigarette with them. There would be others present as well. They would look at each other and flirt. She asked him for his snapchat and she gave him hers. They communicated via snapchat about attending the games. He gave her his Instagram account. He went to Portugal in May 2018 and came back in September 2018. They did not communicate while they were away. When he went to the TFC games upon his return, he felt that there was a bit of a stronger interest coming from her. In cross-examination he said that he was interested in dating her and maybe having a relationship. He told the police that he didn’t like her and would not want to date her.
Making Plans
[8] SB testified that in October 2018, they decided to hang out. On October 8th they exchanged texts. He asked her to come over then but it was late, 11:00 p.m., and she didn’t want to drive at that time to Innisfil where Mr. Silveira lived with his parents. He asked about the next day and she told him that she would let him know.
[9] SB testified that on October 9, 2018, he called her multiple times. She ignored the calls. She was nervous and was worried that it would be awkward and was unsure what they would talk about. But she picked up the call on the third time. They discussed her coming over and having dinner and drinks. SB testified that his voice was different, it was gentle and kind and because of that, she thought that he may be interested in something sexual. She told him that if he was interested in something sexual, she did not want to do that. He responded that this was not his intention. SB testified that she felt guilty, worried that she was being rude and projecting. She said sorry but that she just wanted him to know. He was very understanding. They made plans for her to drive to Innisfil, pick him up at his friend’s house and then go to his house. Mr. Silveira told her that no one would be home. She agreed in cross-examination that the only concrete plan was to go over to Mr. Silveira’s house.
[10] Mr. Silveira similarly testified that he spoke to SB on October 9th and he digitally communicated with her as well. The plan was for her to pick him up at his friend’s house and then they would go to his house. She knew his parents were not home. Mr. Silveira did not have a car. Mr. Silveira denied that SB told him on the phone that she was not interested in having sex. Mr. Silveira told the police that he invited SB to his house to hang out with him and his friends but that his friends didn’t end up showing.
October 9th
[11] SB testified that she was working, and she left Brampton at 8:00 p.m. It was a 45-minute drive. It took her 45-55 minutes to arrive at his friend’s house. She picked Mr. Silveira up. She gave him a hug and she asked him to drive to his house because it was, at that time foggy. The drive to his house was 5-7 minutes. It was quiet in the car, they were listening to music. She was a bit nervous. In cross-examination it was suggested to her that she stayed for approximately 20 minutes at the friend’s house with Mr. Silveira, Mr. Silveira’s friend and the friend’s girlfriend and they smoked marijuana. The complainant said “that didn’t happen.” Mr. Silveira testified that the complainant came to pick him up, they hugged and she came into the house and stayed there for an hour or more, hanging out and smoking marijuana. Afterwards, she drove him to his parents’ place. Mr. Silveira testified that SB arrived at his friend’s around 9:00 p.m., and that it was a 20-minute drive to his house. Mr. Silveira told the police that SB drove straight to his house and that he waited for her there.
[12] Douglas MacNeil, Mr. Silveira’s friend, testified that the complainant came to pick the accused up. She came into the house and stayed for an hour or two max. Everyone hung out and smoked marijuana and then the accused and complainant left. The complainant was driving.
The Sexual Activity
[13] SB testified that they arrived at the accused’s house close to 9:00 pm. They smoked a cigarette and she then had to “pee badly.” She went inside and used the bathroom. She exited the bathroom and saw that Mr. Silveira was in his bedroom sitting on the bed. He was on the right side of the bed. She went in and sat on the left side.
[14] SB testified that she was able to see diagonally from the bathroom door down the hallway into Mr. Silveira’s bedroom and saw him sitting on his bed. She was cross-examined on her ability to see this. She said that the bed was in the middle. She said that when she got out of the bathroom, she was able to see him in the room. She was shown a floor plan of the house. She said that the floor plan did not match her recollection of the layout of the house. She didn’t recall seeing stairs going upwards.
[15] SB testified that in the bedroom the television was on and they were watching a spin off from the “Sons of Anarchy”. They talked about the show. She was in mid-sentence when Mr. Silveira tried to kiss her. She moved back and put her hands out and said “woah”. She said, “what are you doing, we already talked about this”. Mr. Silveira responded that there had been sexual tension between the two of them for a long time. In cross-examination, she testified that she was a bit worried that he wanted to have sex. She agreed that she did not leave the room.
[16] SB testified that Mr. Silveira offered to give her a massage. He said that she had driven a long way and that this would relax her. She said no five times, but Mr. Silveira was persistent and she agreed. She was getting anxious and thought that this would make him stop and leave her alone. She agreed in cross-examination that she did not try to leave.
[17] SB testified that he placed her on her stomach. Her head was facing the headboard. With a quick motion he lifted her shirt up and above her shoulders. He was straddling her legs. Her legs were in between his and he was sitting on her butt or just below.
[18] SB testified that she asked him why he lifted her shirt. He said it would be better this way. SB testified that she said “no, its okay, over the clothes.” Mr. Silveira said “trust me, trust me, this will feel so good”. SB testified that he wasn’t listening. He massaged her back and then he undid her bra strap. SB testified that she told him that you “don’t need to take my bra off for this”. He said that he didn’t want the strap to get in the way and that it would feel so good. SB said that he could go around the strap. He continued. It felt very long but it was probably two to three minutes. She testified that she felt vulnerable and that her “no’s weren’t working”. In cross-examination she was asked what she was thinking when he took her bra off. She said that she was afraid and stressed but she did not think in the moment that she was going to be raped.
[19] SB testified that Mr. Silveira then got up and took her pants off quickly. He ripped them off. She was wearing her uncle’s soccer training pants. They were baggy. She attempted to get up to face him. In cross-examination she said that right after he took her pants off, he removed his own baggy pants. It took him 0.03 seconds. She had no time to roll off and get off the bed. SB testified that she told him that she didn’t want to have sex. She was not yelling but she was fearful and nervous. SB testified that Mr. Silveira responded, “yes you do, there has been sexual tension between us”. SB testified that she started to cry. She was now on her back. He was on top of her having intercourse with her. She said no multiple times in the “double digits” . Mr. Silveira’s pants were either fully off or down to his ankles. He was fully on top of her with all his body weight. She was crying. She said that she didn’t want this. Mr. Silveira responded that she did, “you want this, you like this, it feels good.” He said that she was tight and that it felt good for him.
[20] SB testified that he then turned her onto her stomach, her legs were hanging off the bed and he was penetrating her. Mr. Silveira said he was going to ejaculate inside her. His full body weight was on top of her making it difficult to move. She freaked out and kicked her feet and yelled don’t do that. He then ejaculated on her back and cleaned it up with a towel.
[21] SB testified that she then went to the bathroom and texted her friend at 9:17 pm “SOS”. She testified that the sexual activity lasted five minutes. She was crying throughout. A condom was not used.
[22] She testified that her bra remained on, hanging from her shoulder. She could not remember when her shirt came off. She was foggy about that. She did not take her shirt off. She also did not remember when her underwear came off.
[23] SB testified that she stayed in the washroom for five minutes. She came out and sat on the bed. She was panicked and scared about being hurt physically. She sat to ground her anxiety and to think about how to leave. SB testified that Mr. Silveira tried kissing her again. She backed away and said to him that she didn’t want to have sex. Mr. Silveira said “yes, you wanted it, we will end up together.” She started crying and said she was leaving. She was scared but stuck to it and left and went to meet her friends. During the drive, she was hyperventilating and crying. Afterwards, she blocked Mr. Silveira from her contacts. She agreed in cross-examination that she did not call 911.
[24] She testified that she went to the police in February 2019. She testified that after the incident, she struggled at work, called in sick and was suffering from PTSD. She would get flashbacks while driving, she couldn’t sleep. She smoked weed to help her sleep. She needed accommodations for school, she couldn’t fully function. She never felt like such a small person. She ultimately told her aunt who encouraged her to go the police.
Mr. Silveira’s Testimony
[25] Mr. Silveira testified that when they arrived at his house, they had a smoke outside. She then gave him a kiss. They went inside and hung out in the living room for 10-15 minutes. They decided to watch a tv show in his bedroom. The living room did not have a television. SB went to the washroom, then to his bedroom. Mr. Silveira then went to the washroom. He told the police that when they went into the house, she immediately followed him to the room and stayed there even when he went to get water from the kitchen.
[26] Mr. Silveira and his father both testified that it was impossible to see his bed from the bathroom doorway. The floor plan and photographs were entered to demonstrate the point. Mr. Silveira and his father also testified that the accused’s bed was in a different place in the bedroom than the complainant indicated. The father testified that from the bathroom to the accused’ bedroom was ten feet. One could only see part of the dresser from the bathroom. It would be impossible to see the bed from the bathroom, one would have to have walked down the hallway to see the bed.
[27] Mr. Silveira testified that they were sitting on the bed watching TV. SB then rolled over and started making out with him. She was on top of him, he was on his back, she was straddling him. She stopped and asked him for a back massage. He agreed. He told the police that he did not give SB a back massage and that he doesn’t give them.
[28] Mr. Silveira testified that after the back massage, she got up from the bed and took her clothes off. She then got on top of him and said that it would feel good if he was inside her. She then grabbed his penis and put it inside of her. They switched positions and he had sex with her from behind and he then ejaculated on her back. SB went to the washroom. She stayed at his house afterwards for an hour and left close to 11:00 pm. She was not crying or sobbing. He did not rip her pants off. She did not say she did not want to have sex, she did not protest, rather, she said she enjoyed it and that it felt good.
[29] Mr. Silveira testified that he subsequently received a message from SB saying that he should not message her or else. He thought that maybe she had a boyfriend and he was worried that he would come after him. He honoured her request and blocked her.
Law and Analysis
[30] In this case, as mentioned, there is no dispute that SB and Mr. Silveira engaged in sexual activity. In order for an accused to be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that the sexual activity took place without the complainant’s consent, and that the accused did so with the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42. The first part of the equation is the actus reus of the offence, while the second part of the equation is the mens rea of the offence. The Crown must prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea: R. v. Barton, [2019] 2 S.C.R. 579, at para. 87; R. v. H.W., 2022 ONCA 15 at paras. 37 and 38.
[31] The burden is on the Crown to prove the accused’s guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. In other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case. The accused does not have to prove anything. The Crown is required to prove the essential elements of the offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320.
Has the Crown Proven Beyond a Reasonable Doubt that the Complainant Did Not Consent to the Sexual Activity?
Definition of Consent
[32] “Consent” is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” and it must be freely given. This consent must exist at the time the sexual activity in question occurs. It can be revoked at any time and it must be linked to the “sexual activity in question”, the specific physical sexual act. The focus, at this stage, is squarely on the complainant’s state of mind and whether she wanted the sexual activity to take place at the specific time: Barton, at para. 88; R. v. J.A., [2011] 2 S.C.R. 440, at paras. 31, 34, 40, 43; Ewanchuk, at para. 26; H.W.
[33] There is no such thing as implied consent. Silence does not equate to consent. A complainant need not scream or say no or stop. A complainant need not express his or her lack of consent, or revocation of consent, for the actus reus to be established: Barton, at para. 89; J.A., at para. 37. As stated by Moldaver J., speaking for the majority in Barton at para. 89:
Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete.
[34] SB testified that she told Mr. Silveira no, she said that she did not want to have sexual intercourse. She said that she told him no ‘double digits.” She was crying. She did not want to have sexual intercourse but Mr. Silveira did not listen and had sexual intercourse with her over her objections and without her consent. Mr. Silveira testified that the complainant initiated the kissing outside the house and inside the house, that she asked for a massage, that she initiated the sexual intercourse and that she placed his penis inside of her. He testified that she consented.
[35] My task is not to choose amongst these two different versions to see which one I prefer. Rather, I must assess Mr. Silveira’s evidence, in the context of all the evidence, and if I believe Mr. Silveira, I must acquit. Even if I do not believe Mr. Silveira, in the context of all the evidence, but his testimony leaves me with a reasonable doubt, I must acquit. Even if I am not left in doubt by Mr. Silveira’ testimony, I must still consider on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of Mr. Silveira’s guilt.
[36] If I cannot decide whether to believe the accused, or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and am therefore left in a state of reasonable doubt, I must acquit. A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt: R. v. W.(D.), [1991] 1 S.C.R. 742; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 66, 67. As stated by the Supreme Court of Canada in R. v. Vuradin, [2013] 2 S.C.R. 639, at para. 21, “A verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence”, citing R. v. C.L.Y., [2008] 1 S.C.R. 5, at paras. 6-8.
[37] In assessing the evidence led at trial, I must consider the credibility and reliability of the witnesses’ evidence. Credibility and reliability are not the same thing, as stated by Watt J.A. in R. v. H.C., 2009 ONCA 56, at para. 41:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately:
(i) observe; (ii) recall; and (iii) recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability, a credible witness may give unreliable evidence [citations omitted.]
Also see R. v. Ghadghoni, 2020 ONCA 24, at para. 34.
[38] In assessing a witness’s credibility and reliability, I must examine the consistency between what the witness said throughout his or her evidence, and what was said on other occasions, whether or not under oath: R. v. G.(M.), at para. 23, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536. It is important to consider not just the individual inconsistency but also the cumulative effect of any inconsistencies that I find and the nature of the inconsistency. Not all inconsistencies are the same, some are minor, others are not, some concern material issues, others peripheral subjects. As stated by the Court of Appeal in R. v. R.C., 2021 ONCA 419 at para. 37:
Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a "carelessness about the truth" while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, [2008] 1 S.C.R. 788, at paras. 30-31.
Mr. Silveira’s Testimony
[39] I do not accept Mr. Silveira’s testimony nor does it raise a reasonable doubt. While there is no dispute that Mr. Silveira has always maintained that the sexual activity was consensual, his testimony at trial is different on material points than his statement to the police. Critically he admitted that he lied to the police on a number of occasions and that he wasn’t being truthful. The evidence revealed the following contradictions:
He testified at trial that SB picked him up at his friend’s house and then they drove to his parent’s house. The plan was to hang out at his parents’ house. However, Mr. Silveira told the police that: a) He invited SB to come over because he had other friends that were also supposed to attend. However, the friends didn’t end up attending; and b) SB did not pick Mr. Silveira up at his friends’ house. Rather, SB came straight to his parent’s house and he met her outside. Mr. Silveira agreed that he made up a story to the police. He said that he did so because the police officer was talking down to him and that he had called him a rapist. Later in cross-examination Mr. Silveira said that he did not want to tell the police that he was picked up at his friend’s house because they had been smoking marijuana, which was illegal at the time, and he didn’t want to get anyone in trouble. He agreed that he could have just omitted the reference to smoking marijuana. He didn’t know what to do.
He testified at trial that SB asked him for a massage and that he agreed and gave her one. He told the police the opposite. Officer: Whatever right, and she gets a massage, you gave her a massage. Mr. Silveira: No. Officer: She was okay with that? Mr. Silveira: I actually don’t give massages to anyone. Officer: Ok, she was ok with the massage. Mr. Silveira: You can even ask my girlfriend I don’t give massages, I don’t even touch my own girlfriend man, she begs me to like. Later in the statement, he agreed that he scratched an itch for the complainant but said that “it never lead to a massage that’s what I don’t understand.” In re-examination, he said that he was using massage and scratch interchangeably.
At trial he said that he was interested in SB and that there was a possibility that he would date her. He told the police the opposite, that he didn’t like her, that he would not date her because she was younger. He told the police that even two of his friends said to him that he would never date her. Mr. Silveira said that the officer talked down to him and belittled him. He also said that he was younger then, it was 5 years ago. The officer called him names, he was in his face. He agreed that he was given his rights to counsel and he knew that he had a right to silence. He does not know why he didn’t stay silent.
He testified that when he had sexual intercourse with the complainant, it was without a condom. He told the police at first that he was unsure. Then he said of course he wore a condom, that he always wore a condom and that he didn’t want to go home and tell his parents that he was a dad. Mr. Silveira said that this was the first time he was in trouble and that he agreed to it just to make things go faster.
At trial, he testified that he ejaculated on the complainant’s back and then wiped it off with a towel. He told the officer that he ejaculated inside the condom but outside the complainant and then threw the condom in the garbage. He said that he did not wipe her off with a towel, that would have been “gross” and he never would be able to use that towel again.
He told the police officer near the end of the interview that he could have been an asshole but he was being as honest and respectful as he could be. At the end of the interview, Mr. Silveira said that he was being as truthful as he could recall. However, he agreed at trial that he wasn’t being as truthful as he could.
[40] Defence counsel submits that the accused admitted at trial that he was being dishonest with the police and that speaks to his overall honesty. Furthermore, defence counsel submits that he was not under oath when he spoke with the police and he is under oath now and there is no alleged inconsistency on the core feature of his evidence, that the complainant was consenting.
[41] I disagree. Mr. Silveira lied to the police on multiple occasions. Many of the lies were active ones as opposed to simply wrong answers, as Mr. Silveira fabricated extra details to try and impress upon the officer that he was telling the truth. For example, he lied and denied giving a massage and added that he hates giving massages to anyone, including to his girlfriend. He lied and said he wore a condom and then added that he always wore a condom and he didn’t want to tell his parents that he was a father. He lied and said that he did not wipe off the ejaculate and added that it would have been gross and he would never have been able to use that towel again. I also find that some of his lies to the police had a clear intent behind them to distance himself from any suggestion that he was attracted to the complainant. He lied and told the police that the plan was for SB to come over and join him with a bunch of friends and that that he would never date SB as he didn’t like her.
[42] I have considered Mr. Silveira’s general explanation for being dishonest to the police that he was young and intimidated by the police officer who conducted the interview and that the officer was talking down to him. He was clearly younger at the time of the interview. It was over four years ago. He may very well have felt nervous and intimidated. But I do not understand why this would lead Mr. Silveira to lie to the police in the manner in which he did. He certainly wasn’t shy to add fabricated details. He certainly wasn’t intimidated when he told the officer at the end that he could have been an “asshole” but that he was being as honest as he could when he clearly, on his own version of events, wasn’t.
[43] At one point when he was asked why he lied about using a condom, he testified that he lied and agreed to things to just make things go faster. I don’t understand how lying was quicker than telling the truth. Finally, I note in re-examination a carelessness with the truth when, in another attempt to explain why he denied to the police that he gave the complainant a massage, he readily agreed that when he spoke with the police he was using the term scratch and massage interchangeably. However, it was evident that when he spoke to the police, he drew a big distinction between the two of them.
[44] I simply find Mr. Silveira’s testimony to be too unreliable and too untrustworthy to believe or to raise a reasonable doubt.
The Complainant’s Evidence
[45] The defence submits that irrespective of Mr. Silveira’s testimony, he should be acquitted as the complainant’s evidence is not sufficiently reliable and credible to ground a conviction. The defence raises a number of concerns with respect to SB’s testimony, such as:
a) SB’s evidence that she could see Mr. Silveira sitting on his bed from the bathroom doorway was contradicted by the testimony of the accused’s father, the pictures and the floor plan; b) Mr. MacNeil’s evidence confirms the accused’s evidence that SB came into Mr. MacNeil’ house and stayed for an hour contrary to SB’s evidence; c) SB’s timeline doesn’t mesh with when she sent the 9:17 p.m. text; d) SB was evasive in cross-examination when being asked about a potential sexual encounter with the accused; and e) SB’s testimony regarding how her shirt could be removed but not her bra makes no sense unless she took off her own shirt. Neither does her testimony regarding how the accused removed her pants and his own pants.
The Viewing of Mr. Silveira’s Bedroom
[46] I agree that the complainant could not have seen the accused sitting on his bed from the bathroom doorway. However, in my view, in the circumstances of this case, it is of no significance for the following reasons:
a) I do not view SB’s testimony as her trying to pinpoint her location as being exactly at the bathroom doorway when she saw the accused in his bedroom. SB testified in-chief merely that she exited the bathroom, looked left down the hallway and saw the accused sitting on his bed in the bedroom. In cross-examination, defence counsel asked if she saw Mr. Silveira sitting on his bed from the bathroom door. She did yes. However, later on, when being asked about what she saw, she simply said that when she got out of the bathroom, she saw the accused sitting on the bed. b) There is no dispute that the accused’s bedroom is down the hallway to the left. c) There is also no dispute that one can see in the bedroom to a degree from the bathroom doorway. The accused’s father stated that the distance between the bedroom and the bathroom is ten feet, which in my view, is not a significant distance. SB could have easily exited the bathroom taken a few steps and seen the accused; and d) Most critically, there is no dispute that the sexual activity took place in the bedroom and both the accused and SB testified that they were sitting on the accused’s bed watching television before the sexual activity started. Any discrepancy in terms of SB’s viewing angle from the bathroom is, with respect, of no moment.
Picking up Mr. Silveira from Mr. MacNeil’s House
[47] Mr. Silveira and Mr. MacNeil testified that SB came and spent an hour to two hours inside Mr. MacNeil’s house hanging out and smoking marijuana and that SB drove Mr. Silveira home. The complainant testified that this never happened. The defence points this out as a major inconsistency that should affect the complainant’s reliability and credibility as a whole. I disagree for the following reasons:
(a) I accept SB’s evidence that she did not go inside Mr. MacNeil’s house and hang out and smoke marijuana. I accept her evidence that she picked up the accused and asked him to drive to his parent’s house because it was then foggy in Innisfil. In my view, SB’s evidence had a logic to it. She did not know the area, it was the fall and dark at that time, coupled with the fog, it would make sense that she would ask the accused to drive. She was certain that she did not hang out and smoke marijuana. She testified “that didn’t happen”; (b) I believe that Mr. Silveira and Mr. MacNeil are at the very least mistaken on this point and confusing this night with a different occasion that Mr. Silveira was at Mr. MacNeil’s house. I come to this view for the following reasons: (i) Mr. MacNeil’s memory on the day in question was spotty. He remembered that he picked up Mr. Silveira in Barrie that day but he doesn’t know where or what Mr. Silveira had been doing beforehand. With respect to the time spent with SB, he said that they hang out and smoked marijuana. No other details were provided for the 1 to 2 hours spent. Oddly enough, Mr. Silveira himself had the same gaps in his memory. He did not know where he was picked up from or what he had been doing in Barrie beforehand. He described the time at Mr. MacNeil’s house the same way, without any other details. Mr. MacNeil did not know what type of car SB was driving or what color it was. Mr. MacNeil was also smoking marijuana that day and evening; (ii) Mr. MacNeil had no reason to recall that day at the time. Mr. Silveira testified that he raised the issue with him right after he was charged but that was four months later. I do not see why this event would have stuck out in Mr. MacNeil’s mind. Mr. MacNeil testified that Mr. Silveira was at his house every second weekend. He was asked if Mr. Silveira was ever picked up before by another female. He said yes, paused and then said his mother, which was odd given the nature of the question. It was almost as if Mr. MacNeil realized that his first part of his answer was not supportive of his friend, so he added “his mother”. (c) Again, while there is a dispute regarding whether SB spent time at Mr. MacLean’s house and who drove from there to the accused’s parents’ house, there is no suggestion from the defence or the Crown that anything happened at Mr. MacLean’s house that had any bearing on whether the admitted sexual activity at Mr. Silveira’s parents’ house was consensual.
The Timeline
[48] The defence submits that SB said that she picked the accused up around 9:00 pm and then they went to his house. She testified that they arrived, she had a cigarette and then she went to the bathroom. They started to watch television and then the assault occurred. The defence submits that even on SB’s testimony, nothing nefarious would have happened by 9:17 p.m. when she sent her SOS text. I disagree. SB was quite clear that she was providing estimates of when she picked up Mr. Silveira. On one estimate she would have picked up the accused at 8:45 p.m. She also described the sexual activity unfolding quickly and lasting five minutes. I see nothing inconsistent in her description of the events and texting her friends at 9:17 p.m. I note that she was not cross-examined by defence on her timeline, nor was it suggested to her that she did not send a text, nor was it suggested to her that she did not send a text at 9:17 p.m., nor was it suggested to her that the events could not have unfolded as she said because of the timeline.
[49] The defence also submitted in his closing arguments that the complainant must have sent the text ahead of time to set up the accused. I appreciate that the defence does not have to explain the Crown’s case. There is no such onus on the accused. However, it was never suggested to the complainant that she was trying to set up the accused nor is it a logical inference from the evidence.
SB Was Not Evasive
[50] Defence counsel cross-examined the complainant on whether she believed that the accused was interested in her sexually. He submits that she was evasive. In my view, she was not. She answered his questions and agreed that the accused could have been so interested. Any hesitation that the complainant may have had on this topic was not, in my view, an attempt to be evasive but rather an attempt to understand the question being posed.
[51] Defence counsel submitted that the complainant’s testimony that a date might be awkward was an acknowledgment by her that she knew that the accused wanted to have sex with her. The complainant explained that she was worried that the date would be awkward because all of their past interactions were connected to soccer. She was concerned that they would not have anything else to talk about. That, in my view, is entirely reasonable.
[52] Defence counsel in his closing submissions submitted that the complainant’s testimony that she did not think that there would be a sexual encounter when she went on the date with the accused did not have the ring of truth. I disagree. The complainant testified that she went on a date with the accused because she was curious about him. There is nothing illogical about being curious enough to go on a date but not wanting to have sex.
The Removal of SB’s Clothing
[53] In my view, there was nothing illogical about SB’s testimony with respect to the removal of her clothes. SB testified that she was wearing her uncle’s soccer training pants. She said that the accused was wearing baggy pants. While it might have taken the accused longer than the .03 seconds that SB allotted, the import of her testimony was that they came off quickly. Given the nature of the clothing, it makes sense that minimal effort and time would be needed to remove the pants.
[54] Defence submits that SB’s bra could have only remained on while unclasped if she herself removed her own t-shirt as opposed to the accused. He submits that it would be physically impossible for the bra to have stayed on. With respect, I don’t see the logic in this submission. The t-shirt was on top of the bra. The removal of the t-shirt by someone else would not necessarily remove the bra, even unclasped.
[55] For the reasons just explained, I do not find that the complaints raised by the defence, either individually or cumulatively, cause me any concerns with respect to the credibility and reliability of SB.
Conclusions with Respect to the Credibility and Reliability of SB’s Testimony
[56] The complainant testified that she did not consent to having sexual intercourse. She told Mr. Silveira no, in the double digits, she was crying but he continued. I am satisfied beyond a reasonable doubt, based on the complainant’s evidence, that she did not consent.
[57] I am entitled to consider the witness’s demeanour in assessing the witness’s credibility. However, I must be cautious, as stated by the Ontario Court of Appeal in R. v. D.P., 2017 ONCA 263, at para. 26:
A witness’s demeanour is an appropriate consideration when assessing credibility. Demeanour can, however, be misleading and should be factored into the credibility assessment with care. There is always a danger that demeanour can be overemphasized by a trial judge or a jury.
[58] The complainant answered all questions posed of her in a straight-forward manner with no attempt to tailor her answers to support her position. She agreed that she consented to the massage. She agreed that she felt guilty and maybe was projecting when she told Mr. Silveira when they were making plans that she did not want to have sex. There was nothing in her demeanor that would result in me questioning the veracity of her evidence. However, a witness’s demeanor provides no assistance in determining a witness’s reliability. As stated, a credible witness can give unreliable evidence.
[59] In my view, the complainant gave cogent, detailed, compelling evidence regarding what happened on October 9th at the accused’s parents’ house. Her testimony was logical, internally consistent and had the ring of truth. She explained that she was curious about the accused and agreed to get together. They were watching television, he tried to kiss her. She said no and reminded him of her earlier conversation that morning that she was not interested in sex. He offered her a massage to recompense her for the long drive. He was persistent and she agreed. He then escalated to lifting her shirt, undoing her bra and taking off her pants before having sexual intercourse with her. She testified that her no’s weren’t working. She kept saying that she did not want to have sex but he said the opposite and said that she wanted to.
[60] Her testimony regarding how she freaked out and kicked out her leg when the accused threatened to ejaculate inside of her made complete sense as she didn’t, in her own words, want to get pregnant by a rapist. Her testimony regarding what she did afterwards was completely consistent with a person who had been attacked. She texted her friends “SOS”. She sat on the bed to collect her thoughts and when the accused tried to kiss her again, she realized that, although scared, she had to leave then. She testified that she blocked the accused from her contacts. This was consistent with the accused’s testimony on this point where he said that he received a message from her threatening him not to contact her again. SB’s explanation of the difficulties she had after the attack which delayed her complaint to the police was also logical and understandable.
[61] I am satisfied beyond a reasonable doubt that SB did not consent to having sexual intercourse with Mr. Silveira.
Has the Crown Proven Beyond a Reasonable Doubt that Mr. Silveira Had the Requisite Mens Rea for the Offence?
[62] The Crown must also prove that the accused had the requisite mens rea for the offence. With respect to sexual assault, the Crown must prove “that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent.”: R. v. G.F., [2021] 2 S.C.R. 107, at para. 25. H.W.
[63] The complainant testified that she told the accused to stop, that she didn’t want to do this, and that she was crying throughout. According to the complainant, the accused said that she wanted to have sex, that there was sexual tension between the two of them and that they would be together. Again, I accept the complainant’s evidence. In my view, the accused knew that the complainant didn’t want to have sex but he didn’t care. He was not going to take no for an answer. I find that the Crown has proven the mental element of the offence beyond a reasonable doubt.
[64] Mr. Silveira, I find you guilty of sexual assault.
The Honourable Justice H. Leibovich