Court File and Parties

COURT FILE NO.: CR-23-213 DATE: 2024/11/01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – J.M. Defendant

Counsel: Celia Pennycook, for the Crown Laura Ellis & Ron Ellis, for the Defendant

HEARD: October 28 and 29, 2024

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published.

TRANQUILLI J. (ORALLY)

[1] J.M. is charged with one count of sexual assault of A.M. contrary to s. 271 of the Criminal Code. The charge arises from an encounter between J.M. and A.M. in his London apartment on April 15, 2022, involving fellatio and then vaginal sexual intercourse. There is no dispute this sexual activity took place. At issue is whether each of these acts were consensual.

[2] The accused and complainant each give very different accounts of what took place. The complainant secretly recorded telephone conversations with the accused after the event. It is implied that he allegedly admitted to violating her boundaries in these conversations. The accused denies that he admitted responsibility for engaging in sexual activity without her consent.

[3] The judge-alone trial proceeded over the course of two days. Identity, date, and jurisdiction are admitted. The Crown called evidence from the complainant. J.M. testified on his own behalf.

Overview of Evidence

[4] I begin with an overview of the evidence.

[5] J.M. is 27 years old and lives in London. He is employed in computer programming. A.M. is 29 years old and lives in Cambridge and worked at the material time as a schoolteacher.

[6] The accused and complainant first met through the online dating app “Hinge” and began a relationship in November 2021. The relationship ended in June 2022, several weeks after the alleged sexual assault occurred on April 15, 2022.

[7] Their respective accounts of the circumstances of their relationship over those several months appear to reflect that they first enjoyed spending time together but that they came to experience some mutual dissatisfaction in the latter months of their relationship, albeit from different perspectives.

[8] A.M. testified that J.M. was on the autism spectrum or was otherwise neurodivergent, which affected his ability to be present and to show an interest in her and her pastimes. She came to feel unheard and that he did not really care to spend time with her. She described that she found the accused had challenges with being “present” and would be consumed by his own interests and activities. She was frustrated with her one-sided effort in their relationship. She engaged in his interests, such as gaming, however, he would not reciprocate and show attention to her interests, such as her extensive travels. He would not follow through on her suggestions for dating activities, like going to an escape room.

[9] On cross-examination, J.M. explained he that he has never been diagnosed as being on the autism spectrum. He claimed that A.M. concluded that he was on the spectrum because she had experience with family members with that diagnosis and that she saw a correlation with his interests in computers, gaming, world history, and other “nerd” activities. She suggested therapy. She would discount his memory of earlier discussions or events because he had experienced some concussions a few years earlier and she claimed she had a phenomenal memory. She began to show less interest in him and would often get angry when he disagreed with her. For a while he would go along with her to avoid an argument. He came to believe she was “gaslighting” him.

[10] In April 2022 A.M. contracted COVID and became quite ill. They did not see each other for a couple of weeks. J.M. came to visit her in Cambridge when she was feeling better, and they traveled together back to J.M.’s apartment in London on or about April 14, 2022. A.M. testified that J.M. had said she could stay in his apartment, and he would take care of her, but that once they arrived, he started playing video games and said he had to do some work from home.

[11] They spent the following day at his apartment, on April 15, 2022. This now brings us to the charged conduct.

A.M.’s testimony

[12] A.M. testified that she and the accused were going to be engaging in sexual activity. She testified she had a clear discussion with him about her boundaries while they were sitting on a couch in his apartment. She briefly smoked some cannabis just before the conversation. He had not. She told J.M. that she wanted a massage before they engaged in any sexual activity. She wanted to be able to relax and feel comfortable. On the previous day, she set a time of 10 minutes for the massage to which he agreed. However, she found that the massage was not long enough. She told him that the massage had been “half-assed” and was not what she had expected. There had to be a “crystal clear” transition from massage before they went “beyond second base” or “below the belt”.

[13] The accused and complainant went into the accused’s bedroom. They each removed their own clothes. A.M. lay face down on his bed, with her head towards the headboard. She had her arms raised with her hands cupped above her head and rested her forehead on or at her hands. J.M. stood to one side of the bed around where her hips were situated. He massaged her for two to three minutes and then asked her to rotate 90 degrees on the bed so her head would be facing him.

[14] A.M. testified she changed position to laying face down across the bed, horizontal to the headboard, with her head towards where J.M. was stood, naked. She thought he would ask for oral sex. She testified she did not want to engage in oral sex, and so kept her head down on the bed after she changed position. However, the accused then raised her head by grabbing her jaw on both sides of her head. She opened her mouth to ask him a question, like “what” was intended, at which point he put his penis inside her mouth and continued to massage her on her back.

[15] She recalled he then made a comment like “Oh, this isn’t self-serving at all”. He was making noises as though he was enjoying himself. She was shocked. He thrust his penis back and forth in her mouth as he massaged her back with his hands. These movements prevented her from backing away from him. She felt like she was going to choke. She became frightened by what he might do. She dissociated and felt as though she was watching the act from outside her body. She remained passive and did not participate in the oral sex. She tried to stay calm and left her mouth open so she could breathe and waited for it to be done.

[16] She estimated the oral sex lasted in this manner for between one and two minutes. He did not ejaculate. He then asked her to lay on her back. She complied and they transitioned to vaginal sex in the “missionary” position, with her laying on her back and J.M. on top. She was very fearful and in a dissociative state. She was worried he would become angry if she did not comply. She was not an active participant in the vaginal intercourse and did not make any sounds of enjoyment. She kept her facial expression neutral and did not make any noises. She did not think the act finished with ejaculation.

[17] They later did the dishes together. She described a silent war in her head where she was trying to remain calm. She was frightened as she did not have her own way home to Cambridge from his apartment. J.M. asked her why she was so quiet, and she said she was just tired.

[18] I now turn to J.M.’s testimony of the encounter.

J.M.’s Testimony

[19] J.M. testified A.M. told him she wanted to have sex with a massage first. He agreed. He acknowledged they discussed how she wanted the sexual activity to unfold. However, he denied she gave any “crystal clear” directions; only that she wanted to enjoy some intimacy first before they moved on to sexual activity. He vaguely remembered her telling him that she was unhappy or disappointed with the previous massage for some reason. He did not recall her using words like wanting to be “comfortable”, but that she wanted more intimacy before sexual activity. He was not sure why she was unhappy with the earlier massage, but he wanted to try again and give her a better treatment. He acknowledged the massage was not to involve going beyond “second base”, which he understood to mean staying away from her vaginal area.

[20] They went into his bedroom and they each removed their own clothes. He gave her a full body massage. She turned over onto her back and asked him to massage her on her chest. He then moved to massaging her pelvic area, around her inner thighs. He was watching her reactions. She appeared to him to be enjoying it and to be interested as she was moaning and would ask him to massage certain areas like in her upper back and shoulders. He would ask if the pressure felt ok and she would respond “yes”. His questions to her were intended for feedback on the massage and not for permission to touch her. The massage lasted for between 10 and 15 minutes, until his hands got tired.

[21] He then asked her to rotate on the bed so that her head was facing where he was standing at the one side of the bed. She did so. His penis was erect. He placed one of his hands under her cheek while continuing to use his other hand to massage her neck or upper back. He denied that he held her head forcibly between his hands. He believed she understood what he was gesturing for as she raised her head in response to his gesture and they moved their bodies closer to one another. She put his penis in her mouth and began to perform oral sex on him. She moved her head back and forth, licked his penis with her tongue and stroked his leg with one of her hands; he believed it was her right hand. The act would also switch to him moving his penis back and forth in her mouth.

[22] She gave him oral sex for a few minutes and then they moved to vaginal intercourse. For this, he asked her to get up from the bed, which she did. He laid down on the bed and he asked her to get on top of him, which she did. He recalled that she had her hands on his chest and that they occasionally held hands. They kissed and she made sounds consistent with pleasure throughout the interaction. They then transitioned to her laying on her back and him on top when she said she was tired. The intercourse stopped without ejaculation. They lay in bed and cuddled for a time and then got up and had a shower. He recalled that she was quiet after that, and he was worried that she was angry or stressed. He thought she was tired, or it was from having had COVID.

Events after April 15, 2022

[23] A.M. testified she raised the incident with J.M. about one week later in a telephone conversation. She claimed she told him he had not followed her directions for how the transition from the massage to sexual activity would happen and that he had really hurt her. Not only was he not asking her about her travels, he also did not listen to what she needed for sex. She testified that he apologized, said he should not have done that and that she was right. He asked what he could do to make it better. He agreed to buy the book, “You’re Not Listening”. She found that he was more attentive and was asking her more questions for a while, but then this change in behaviour started to dwindle. She was upset when she learned he had stopped reading the book. She suggested he investigate therapy. She described becoming hypervigilant and responding to his conduct by not showing interest in his pursuits and she insisted they do what she wanted.

[24] J.M. testified that A.M. called him about one week later and told him that a boundary had been violated and that she was upset. He apologized. He could not recall specific details of the conversation but that she was upset that he was not “present”. He was not certain what had made her upset. He just knew she had been uncomfortable during sex, and he wanted to resolve that in the future. At her suggestion, he purchased the book “You’re Not Listening”. He stopped reading it after deciding he disagreed with some of its content and his realization that she expected him just to accept what she told him without any thought. He had come to understand her communication style with him as “gaslighting”.

The Telephone Calls

June 12, 2022

[25] J.M. called the complainant on June 12, 2022. A.M. recorded part of this conversation after it started. J.M. did not know she was recording the call. She testified she started recording the conversation after she heard him make statements that were upsetting and dysregulating to her. She was having a hard time processing what she was hearing and wanted the recording for herself so she would know what he had said.

[26] The partial recording of the phone call was played on the record and entered into evidence.

[27] J.M. told her that it seemed there were some things about him that just did not seem to mesh well with what she wanted and that there were a lot of things about him that she had raised as problems. A.M. told him that he had not shown any interest in any of her things, and she was trying to help him to improve because at that point they were not a good match. She went on to state:

The big issue is because of your lack of presence I told you some sexual boundaries that I had and you overrode those boundaries three times in two days, because either you’re not present or you’re a psychopath, and I don’t think you’re a psychopath. I just think that you’re someone that’s not present, but the lack of presentness [sic] which is why I was telling you about this issue, is why I now don’t feel safe with you.

[28] J.M. responded: “I understand”.

[29] The approximate 10-minute recording ended with them agreeing to talk again in a few days at the end of the week and perhaps do so in person at a half-way point between London and Cambridge.

[30] A.M. testified that she prepared her own transcript of this conversation as part of trying to understand the situation. She then sent it to J.M. by email or text for his own review. She testified she did not understand why J.M. could not see the concerns and that with the transcript maybe he would look at it as she saw it.

June 15, 2022

[31] J.M. then called A.M. on June 15, 2022. She was out at the time, and she arranged to call him back later. She called him back from her apartment and this time recorded their complete conversation, again without his knowledge. She testified that she recorded the conversation because she thought what he would say would be upsetting to her as he had called her sooner than they had planned in their last conversation that I have just summarized. She explained she tends to dissociate when she is upset, and she wanted to be able to go back to the conversation.

[32] This approximate 5-minute recording was also played on the record and entered into evidence.

[33] The conversation begins with J.M. telling A.M. that he had been thinking and did not see that they would work out well. A.M.’s voice becomes elevated, and she presses him to describe what she had asked him to change. J.M. responds that he is not really sure, just that she wants him to change and be more present. A.M. then states:

You need to listen to me … so you don’t shove your dick in my mouth without permission. Like that was really the problem, you realize that, right?

[34] J.M. responds: “Yes”.

[35] The conversation continues with A.M. describing:

And I asked you to try to be more present so you don’t borderline sexually assault me and that was too hard.

[36] The accused and complainant discuss the end of their relationship for several minutes and then J.M. says good-bye. The recording ends with A.M. stating: “God, men will do anything but take accountability.”

Report to Police

[37] A.M. reported the April 2022 incident to Waterloo Regional Police just short of one month after these conversations in June and gave a statement on July 13, 2022. She testified that she only mentioned the forced oral sex because she did not remember details of the vaginal intercourse. The officer had asked her what happened after the oral sex and A.M. was distressed that she did not remember those details. She did not want to recall those details but thought it would be beneficial for her because that was the “primary incident”. She spent the next few weeks remembering what had happened and spoke with an officer with the London Police Service about the vaginal intercourse on August 3, 2022.

Positions of the Parties

[38] The defendant submits that J.M.’s testimony ought to be believed or at the very least raise a reasonable doubt such that the court must find that the Crown has not proven beyond a reasonable doubt that A.M. did not consent to the oral sex, or the vaginal intercourse and that J.M. knew she did not consent. He was unshaken and consistent in his testimony.

[39] In contrast, A.M.’s testimony was inconsistent, unreliable, and defied logic and common sense. She gave an inconsistent description of how she was unable to move her head during the oral sex, an explanation that arose for the first time at trial. Her police statement also clearly conveys that she was an active participant in the oral sex in contrast to her description of the act at trial. She told police she “gave” the accused a “shitty blow job”. Further, the alleged forced oral sex was her only concern at the time of her first statement. It was not until a month later that she volunteered additional details about forced vaginal intercourse, and that was prompted by the need to explain what happened after the alleged forced fellatio. Her explanation for this omission and her different description of the vaginal intercourse at trial was inconsistent, improbable, and not worthy of belief. Her explanation of dissociating and “freezing” during the sexual activity is at odds with her ability to transition to vaginal intercourse and her first recollection to police that she may have engaged in vaginal intercourse on top of the accused. The phone calls neither confirm nor corroborate her version of events. Her concerns are vaguely expressed, fall short of accusing him of sexual assault and J.M. never says anything that could be interpreted as a confession.

[40] The Crown acknowledges that J.M.’s testimony was unshaken and has a “ring of truth”. However, the Crown contends the court should ask whether it is possible for the oral sex to have been performed as described by the accused. There remains a path to conviction when one considers the nature of any inconsistencies in the complainant’s testimony. The incremental disclosure of the vaginal intercourse is explained and does not undermine her credibility. She explained the circumstances of her dissociation and the process by which she eventually decided to come forward to police. Her explanation of not being able to move her head during the oral sex is one minor inconsistency in a sea of consistencies in her testimony. She remained otherwise consistent and unshaken on her core allegations. The court should also carefully consider whether the accused’s statement in the phone call is an admission or adoptive admission of his knowledge that she had not consented to the sexual activity. The serious nature of her accusation of forced oral sex in the second phone call was such that he could reasonably be expected to respond and deny her allegation.

Legal Principles

[41] I now turn to the legal principles that must be borne in mind throughout the court’s analysis of the evidence.

[42] There is no dispute that sexual activity took place by way of fellatio and vaginal intercourse. The issue is consent in respect of each sexual act. The Crown must prove:

a. That A.M. did not consent to the sexual activity; and b. That J.M. knew that A.M. did not consent to the sexual activity.

[43] Consent is the voluntary agreement of the complainant to engage in the sexual activity in question. Contemporaneous, affirmatively communicated consent must be given for each and every sexual act. Consent can be communicated by the words or conduct of the complainant. A complainant is not obliged to express a lack of consent either by words or conduct.

[44] There is no consent unless A.M. agreed in her mind to the sexual activity in question at the time it was occurring. Agreement to one form of sexual activity is not agreement to any or all forms of sexual activity. Silence does not constitute consent. Nor does submission or lack of resistance. For consent to be valid, the complainant must be conscious and capable of consent throughout the activity.

[45] To prove that J.M. was aware of A.M.’s lack of consent, the Crown must prove that he actually knew that A.M. did not consent to the sexual activity in question; or that he knew there was a risk that A.M. did not consent to the sexual activity in question and he proceeded in the face of that risk; or that he was aware of indications that A.M. did not consent to the sexual activity in question, but that he deliberately chose to ignore them because he did not want to know the truth.

[46] That brings me to the onus and standard of proof.

[47] J.M. is presumed to be innocent. He is not required to prove a thing.

[48] The onus is on the Crown to prove J.M.’s guilt beyond a reasonable doubt. That heavy burden rests on the prosecution from beginning to end. It never shifts to J.M. It is for the Crown to prove beyond a reasonable doubt that the sexual activity was not consensual.

[49] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence.

[50] Proof beyond a reasonable doubt does not involve or require absolute certainty. The standard in a criminal case is not proof beyond any doubt. However, more is required than proof of probable guilt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. The Crown bears an onus which is much closer to absolute certainty than to the civil standard of a balance of probabilities.

[51] Because of J.M.’s testimony, I remind myself of the following principles from R. v. W.D.S.: 1. If I believe J.M.’s evidence, obviously I must acquit; 2. If I do not believe J.M.’s evidence, but am left in reasonable doubt by it, I must acquit; and 3. Even if I am not left in doubt by J.M.’s evidence, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of J.M.’s guilt.

[52] The W.D. formula seeks to ensure the correct standard of proof is applied to credibility issues by describing three general states of belief a trier of fact may arrive at after evaluating credibility and reliability in a case where there is evidence inconsistent with guilt. The formula directs the trier of fact to the outcomes that flow from each of those three general states of belief: R. v. C.L., 2020 ONCA 258 at para. 27.

[53] The formula does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. The steps are simply different results or alternative findings made at the end of the case when considering the totality of the evidence. A trier of fact must look at all the evidence when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond a reasonable doubt and whether the accused’s exculpatory account must necessarily be rejected. These decisions are all made at the same time based on the same total body of evidence: R. v. Thomas, 2012 ONSC 6653 at paras. 23 and 24.

[54] The important issues in this case are that of the witnesses’ credibility and reliability. These issues play a central role in making the determination of whether the Crown has proven the essential elements of the offences beyond a reasonable doubt or whether the evidence, considered as a whole, raises a reasonable doubt.

[55] In assessing credibility, I have considered the general integrity and intelligence of the witness, the witness’s opportunity to observe, capacity to remember and accuracy in statements. An honest witness may still be unreliable or have an imperfect or inaccurate memory or recall of earlier events.

[56] I must examine both the internal consistency of a witness’s evidence as well as the consistency of that evidence with the evidence of other witnesses. I must apply the same level of scrutiny to all witnesses.

[57] I should consider the plausibility of the witness’s account and of any motive to fabricate or embellish.

[58] It is also important to determine whether the witness is honestly endeavoring to tell the truth, whether sincere, frank, biased, reticent, or evasive. However, I must be careful not to place too much weight on the demeanour of any witness. There is increasing recognition that individual traits and experiences may impact demeanour without necessarily affecting credibility.

[59] A valuable means of assessing the credibility of a witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. I must also assess what is testified to in the context of all the evidence in the case and not on an isolated basis. This includes assessing any inconsistencies and whether these are inconsequential or material and significant to the case. If the inconsistency is significant, then this court must pay careful attention to it when assessing the reliability of the witness’s testimony.

[60] I must be wary about assumptions as to what constitutes sexual assault, what kind of person may be the victim of sexual assault, what kind of person may commit a sexual assault, or what a person who is being, or has been, sexually assaulted will do or say. Consent cannot be inferred solely from the relationship between the person charged and the complainant. There is no stereotype for sexual assault, persons who commit it, or persons who are victims of it. The offence can take place in almost any circumstance between all kinds of different people who react in a variety of ways. There is no place for the myth that a victim of sexual assault will resist, fight, or attempt to get away from her assailant. There is also no right way for a victim of sexual assault to behave after the fact: R. v. Varghese, 2024 ONCA 555 at para. 34.

[61] While avoiding reliance on or drawing adverse inferences from the recognized myths and stereotypes regarding sexual assault, I must ensure that I apply the same level of scrutiny to A.M.’s testimony as I do to the testimony of the other witnesses.

Assessment

[62] As I have just reviewed, this is not a credibility contest. The verdict must not be based on a simple choice between the evidence of the accused or the evidence of the Crown. The credibility and reliability of the evidence of the Crown and the evidence of the defence are live issues that I must carefully consider.

[63] Before dealing with those issues, I will first address the accused’s alternative theory that the defence of honest but mistaken belief in communicated consent is available on this evidence. The theory is that if the court were to find that A.M.’s first description of the sexual activity to police is what, in fact, happened, then it could be open to find that J.M. had an honest but mistaken belief that she had communicated her consent to the activity. Notwithstanding that she did not, in her own mind, consent to the sexual activity, she “gave” him the “half-assed” or “shitty blow job” and then transitioned to vaginal intercourse, possibly where that act included her sitting on top of him. It is similar to the progression of sexual activity as testified to by the accused and her conduct would have led him to reasonably believe she had consented to the activity.

[64] This is an interesting argument. However, the complainant was clear in her trial testimony that she did not communicate consent either by words or conduct. She testified variously that she “froze”, “dissociated” or was “paralyzed”. She refused to adopt the words she used to describe the sexual activity in her police statement. She maintained that oral sex was forced on her and that she did not “give” him a “blow job”. Similarly, she insists the sexual activity moved to vaginal sex with her on the bottom, again in a frozen and passive state and not with her in position on top. If her trial testimony is accepted, it cannot be said that she effectively said “yes” through her words or actions. The defence only arises once the trier of fact is satisfied the actus reus of the offence has been made out beyond a reasonable doubt. Where the complainant and accused tell diametrically opposed stories, this defence will not arise unless the opposing accounts can be spliced in such a way that the only material contradiction between them concerns not what happened, but their interpretation of what happened: R. v. Davis, [1999] 3 SCR 759 at paras. 81-86. I will therefore not consider this defence as I find it does not arise from the testimony.

[65] J.M. presented as intelligent, fair, and articulate in his testimony. He was engaged, quiet and responsive to the questions. He readily conceded what he could not recall, such as dates and the passage of time between certain events. His testimony was internally consistent and unshaken on cross-examination.

[66] I do not find his description of how A.M. performed the oral sex to be physically improbable. He described her laying on her stomach and raising her head, propped up on one arm and occasionally using her other hand to stroke his thigh. He explained that this was not a static position but that their respective movements changed throughout the act. His description of the oral sex is also generally consistent with A.M.’s initial statement to police. He testified she put his penis in her mouth. She told police she “gave” him the sexual act.

[67] I find that the recorded telephone conversations are not evidence that he knew she had not consented to the sexual activity. I also did not understand the complainant to maintain that either conversation demonstrated a confession or admission by the accused.

[68] The first recorded telephone conversation only evidences the complainant’s concerns about her unspecified boundaries, to which he simply says, “I understand”. The entirety of that conversation is consistent with the accused’s explanation that he was agreeing with her to avoid an argument. He testified she would maintain she was correct if they had an argument and that she insisted she was the one with the “phenomenal memory” – as she later, in fact, says in this conversation.

[69] In the second conversation she is more explicit and declares that he put his penis in her mouth without her permission. He simply responds “yes”. Again, J.M. testified that he was trying to acknowledge her concern. He did not agree that he had, in fact, forced oral sex on her. His explanation is consistent with the telephone conversation when listened to as a whole. The conversation opened with him expressing his intention to break up with her and the conversation quickly escalated with her interrupting the discussion, getting angry and making the accusation. He testified he was trying to avoid further argument and to end the conversation. Indeed, the entirety of the transcript shows that he says “yes” or “I understand” to several of her other expressed concerns about the relationship, such as his apparent lack of interest in her travels, all entirely consistent with his explanation that he wanted to avoid conflict and end the conversation. I find there is nothing about the circumstances in which she made the accusation which would give rise to a reasonable expectation of a denial. The absence of any admission or confession is also illustrated by the complainant’s final words in the second recorded telephone call: “God, men will do anything but take accountability.”

[70] A.M. presented as intelligent and articulate. She testified without CCTV or a support person present. She presented as intentional with her words, consistent with the importance she confirmed that she placed on communication. She gave her testimony in a compelling manner and became emotional when discussing some aspects of the alleged assaults, although I would note she seemed to be more tearful in discussing her serious illness with COVID and her challenges in her teaching position at the time.

[71] However, there were notable inconsistencies in her evidence.

[72] First, she testified that she was unable to move her head away from the accused’s penis because the accused had his hands on her back and was thrusting his penis back and forth. In cross-examination, it was suggested she could turn her head. She responded that his hands were “kind of” on her head as well. This detail was omitted from her police statement and her testimony in chief. I am mindful that one should not invoke the myth that a victim of unwanted sexual activity will fight back. Indeed, A.M. had first testified that she “froze” when the oral sex started. However, she did not claim that she could not move her head because of this dissociative state. She instead said he was also immobilizing her head in all directions.

[73] She agreed she told police that she did not think J.M. had any malicious intent in committing the act. However, her trial testimony conveyed that he shoved his penis into her mouth and that he forced vaginal intercourse with a limp or passive body.

[74] Similarly, in the recorded conversation she only goes as far as accusing J.M. of “borderline” sexual assault. At trial, she was adamant the acts were nonconsensual. I am not to be understood as requiring the complainant to have an informed understanding of how the Criminal Code and the common law defines the contours of the law of sexual assault. Nevertheless, one is presumed to know the law and the law expects individuals to know they must obtain consent to engage in sexual activity. Her use of the term “borderline” would seem to suggest some question or doubt on her part about whether her consent was absent. Alternatively, that her original concern was in the nature of dissatisfaction in the quality of the intimacy leading to sexual activity and that it fell short of her expectations that she believed she had communicated in advance to the accused. The term “borderline” does not convey that she had not, in fact, agreed to the sexual activity.

[75] She testified at trial that he put his penis in her coincidentally open mouth and that she remained frozen and passive throughout the oral sex act. However, she clearly told police that she “gave” the accused oral sex, which accords with J.M.’s description of the encounter. I accept that this word, “gave” has some significance for a witness who is bright and intelligent and places importance on communication. She agreed that she told police she was a “clear communicator.” I acknowledge her explanation that her use of those terms was her best way at the time of explaining that she just kept her mouth open during the act. However, it remains difficult to reconcile her use of the term “gave” the oral sex with trial testimony of “freezing”, “dissociating” or being “paralyzed” with fear, although the assessment of her credibility and the reliability of her evidence would not necessarily turn on this issue if it were the only inconsistency.

[76] However, the inconsistencies continued with her description of what constituted the alleged sexual assault. She was clear in the recorded telephone conversation that her issue with the accused was with the transition into oral sex. She never accuses him of forced vaginal intercourse.

[77] This omission from her accusation takes on more significance when one considers that she first had little to tell the police of any other sexual activity that followed the unwanted oral sex. She told police, “we had sex” and explained it was either him saying lay on your back or him saying get on top, one of the two. She did not describe unwanted vaginal intercourse at the time or explain that she “froze” during this part of the sexual activity. She did not provide further detail of unwanted vaginal sex until she called police again three weeks later after she said she remembered the details.

[78] The court is attuned to the fact that incremental disclosure in sexual offences is not unusual and that the court should take care not to invoke the myth that a victim will immediately report sexual violence. On its own, incremental disclosure is not a basis for finding that her evidence was not credible or reliable. That said, the court can still consider her reasons for her manner of this disclosure given its patent conflict with her accusation to J.M. and her initial disclosure to police.

[79] A.M. initially testified that she spent the three weeks after her first police statement trying to recall that aspect of the encounter “because that was the primary incident”. When confronted on cross-examination with that explanation and her omission of any detail of forced vaginal intercourse, A.M. first claimed that the oral sex was the primary incident for her because in her mind it was the worst incident. This explanation is problematic as when she was asked to explain this same omission from her accusation of the accused, she testified that both the oral sex and the vaginal intercourse were “equal in severity.”

[80] She later claimed that her use of the terms “primary incident” encompassed both the oral sex and the vaginal intercourse. I find that explanation implausible in the context of her testimony as a whole. She first testified her memory gap about the vaginal intercourse shocked her at the time she gave her first police statement. She therefore worked to recall what happened because “that was the primary incident”. As she had already told police about the oral sex, her use of that phrase can only logically mean the vaginal intercourse was the “primary incident.”

[81] Finally, her description of the vaginal intercourse itself is also problematic. She testified to being told to lay on her back while the accused forced vaginal intercourse on her in the missionary position, which of course would be consistent with her testimony of being in a passive and paralyzed state. She first told police in July 2022 that she may have been on top, which is consistent with the accused’s testimony. In cross examination, she first denied having told police that was a possibility. When confronted with those words, she said she made the representation when she could not remember. This admitted lack of precision in her statement to police, alleging a serious criminal act, gives me some concern about the reliability of her testimony.

[82] I accept that A.M. appears to sincerely believe that she did not consent to either the oral sex or the vaginal intercourse. However, the internal and external inconsistencies in her testimony undermine the reliability of her core allegations. In applying W.D., and in considering the totality of the evidence, I find no reason to disbelieve J.M.’s testimony or to reject his account that she communicated consent to both forms of sexual activity.

[83] For these reasons I find the Crown has not proven this charge beyond a reasonable doubt and I find J.M. not guilty.

Justice K. Tranquilli

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record.

Released: November 1, 2024