Court File and Parties
Court File No.: CR-22-00000022-0000 Date: 2024-03-08 Ontario Superior Court of Justice
Between: His Majesty The King And: Alex Clarke, Defendant
Counsel: W. Barnes, for the Crown A. Knott, for the Defendant
Heard: January 15, 16 and 17, 2024
Reasons
M.L. Edwards, R.S.J.:
Overview
[1] Mr. Clarke is charged with one count of sexual assault of S.A. The main factual issue before this court is whether or not S.A. consented to the sexual activity which took place on June 30, 2020.
The Facts
[2] There are certain facts that are not disputed in the evidence of S.A. and Mr. Clarke. Both agree that they knew each other from high school. They both agree they were not close friends and would be better described as acquaintances. While they had both texted each other in the past, it is agreed that texting was not a frequent occurrence between them.
[3] On June 25, 2020 Mr. Clarke sent text messages to S.A. beginning at about 3:21 a.m. Mr. Clarke indicated that he had somehow pocket-dialed S.A. and that he was “chilling can’t sleep”. Mr. Clarke inquired as to whether S.A. would be interested in going for a drive. S.A. was awake when the text messages were received and she responded with a text message that she would normally say yes to going out for a drive but that she was too tired. The time of these text messages was between 3:30 a.m. and 4:00 a.m.
[4] On June 29 Mr. Clarke sent a text message to S.A. around 11:45 p.m. inquiring as to whether she would be interested in “hanging out”. Mr. Clarke also inquired as to whether S.A. smoked weed. S.A. responded to Mr. Clarke with a text message that she would be interested in hanging out and that she did smoke weed. S.A. provided her address and Mr. Clarke picked her up in his grandmother’s 2012 white Honda Civic shortly after midnight on June 30, 2020.
[5] After Mr. Clarke picked S.A. up they drove approximately one kilometer to a local park that was adjacent to a lake. It is at this point the evidence of S.A. and Mr. Clarke significantly diverges.
The Evidence of S.A.
[6] S.A. is presently 22 years of age and as such in June 2020 she would have been approximately 18 years of age. She believes that Mr. Clarke was approximately one or two years older than her.
[7] S.A. testified that when they arrived at the local park they smoked some weed and Mr. Clarke asked her whether she would be interested in going skinny-dipping, to which she said no. She suggested that they go for a drive instead.
[8] Mr. Clarke and S.A. then did in fact go for a short drive, ultimately returning to the same park and beach location where they had been approximately 20 minutes earlier. S.A. testified that when they arrived they smoked some more weed. Out of nowhere Mr. Clarke then leaned over and kissed her. S.A. testified that she asked him what he was doing and according to her evidence he then apologized.
[9] Shortly after this first kiss S.A. testified that Mr. Clarke then reached over onto the far side of her front passenger seat and disengaged the seat recliner thus putting the passenger seat into a partial reclining position.
[10] After Mr. Clarke had put the passenger seat into a partially reclined position, S.A. testified that Mr. Clarke then got onto her side of the vehicle, straddling her legs. She testified that when he got over onto her side of the seat, she told him to stop and tried to push him back. Despite her efforts in this regard, S.A.’s evidence is that Mr. Clarke then succeeded in undoing the clasp of her bra and partially removing her jeans. She testified that he touched her both on the outside of her jeans and on top and under her underwear. She stated that he partially removed his pants (being unsure as to whether he was wearing jeans or shorts) and then attempted to insert his penis into her vagina. S.A. was not sure as to whether or not Mr. Clarke ejaculated.
[11] In her cross-examination S.A. was adamant that she was never okay with any of what was occurring as it was her understanding that Mr. Clarke only wanted to hang out and that it was not a date. She stated that when Mr. Clarke initially tried to kiss her she immediately said no as she was not expecting it.
[12] In cross-examination S.A. was confronted with suggested inconsistencies in a statement that she had provided to the police on July 7, 2020. She acknowledged that she did not tell the police how her clothes came off and strongly disagreed with the suggestion that she had assisted Mr. Clarke by taking her pants off. She further disagreed in cross-examination with the suggestion that she had assisted Mr. Clarke by arching her back to allow him to unclasp her bra.
[13] It was suggested to her in cross examination that she did not describe to the police how her pants had come down, nor did she indicate to the police that it was Mr. Clarke that took them off. S.A. responded to these supposed inconsistencies by indicating that she did not know that she had to give all of those details to the police. She stated that she gave all of the information that she could. She further stated that she felt scared and alone and that four years ago when she was interviewed by the police she was attempting to give her story as best as she could.
[14] In cross-examination S.A. was asked whether she knew what “ghosting” was and indicated that she did. Ghosting is apparently a process where someone blows smoke into the mouth of another person. S.A. disagreed that Mr. Clarke had leaned across towards her and was in the process of ghosting her when he kissed her. S.A. disagreed this happened and further disagreed that she kissed him back.
[15] It was suggested to S.A. in cross-examination that at some point she said to Mr. Clarke words to the effect of “go slow”. S.A. stated that this never happened. She was adamant that she never consented to Mr. Clarke putting his penis inside of her- simply put, it was as she testified “something I didn’t want”. She acknowledged that she could not recall whether Mr. Clarke was able to get the entirety of his penis inside of her vagina.
[16] S.A. acknowledged that at some point Mr. Clarke did get off of her and acknowledged that he did say sorry to her. She stated that after he got off her he then pulled out his bong and smoked some more weed as she was getting dressed.
[17] S.A. acknowledged that after Mr. Clarke got off of her she did not want to go home right away as she was too busy crying. She acknowledged that she asked to go for a drive and that approximately ten minutes later they went home. In cross-examination it was suggested to S.A. that she was not afraid of him as evidenced by the fact that she went for a drive with him after the events described in the parking lot. She strenuously disagreed that she had any memory problems.
The Evidence of Mr. Clarke
[18] Mr. Clarke is 23 years of age and back in 2020 he would have been approximately 19 years of age. He stated that he graduated from the local high school in 2018 and did a “victory lap” in 2019.
[19] Mr. Clarke confirmed that he did not know S.A. very well but that they were friends of friends from high school. He stated that he would see her two to three times per week walking by in school or in the parking lot. The nature of their conversations were little more than something along the lines of “how are you doing”. He stated that they did hang out once at lunch with a friend but other than that they had never hung out prior to the events of June 30.
[20] On June 29 Mr. Clarke stated that he reached out to S.A. again as evidenced in the text messages which were marked as Exhibit 1.
[21] Mr. Clarke stated that they drove to the local park and once he had pulled up to the fence line abutting the water he asked S.A. if she wanted to go swimming. Mr. Clarke stated that S.A. responded that she did not have a bathing suit with her. He stated that he got out of the car to feel how the water was. It was his evidence that she also got out of the car and walked to the edge where he gave her a little flick of water. He stated that S.A. giggled and that they got back into the car and went for a short drive. He stated that they were gone no more than ten minutes and returned to the park where he pulled back in and asked S.A. if she wanted to smoke weed.
[22] Mr. Clarke testified that they then both began vaping at which point Mr. Clarke stated they made eye contact and he asked her if she wanted to “ghost with me”. Mr. Clarke’s evidence is that S.A. stated that she was interested in ghosting and he then blew smoke into her mouth and leaned in to kiss her. It was his evidence that S.A. then kissed him back. He stated that he could feel the pressure of her lips against his. He testified that no one said anything at this point. He stated that after she had blown the smoke out she then leaned towards him and gave him another “peck – kiss” on the lips.
[23] Mr. Clarke testified that after this kiss he kissed her again and at this point he reached over S.A. and engaged the switch on the passenger seat so that it would partially recline. Mr. Clarke testified that having reclined the passenger seat he then hopped over the console into the passenger seat occupied by S.A. and that over the course of five or ten seconds she moved out of the way to make room for him. He stated that nothing was said between them.
[24] Having got himself onto the passenger side of the car, Mr. Clarke testified that they then started to “make out” and that they were both kissing longer than a few seconds at a time. He stated that S.A. took off her sweater and that with his right arm resting on her side she moved forward to allow him to unclip her bra. He stated that they continued to make out and that his left hand was on her right breast. Mr. Clarke throughout his evidence gave detailed descriptions as to where his hands were located within the vehicle as well as where her hands were located.
[25] Having unclipped S.A.’s bra Mr. Clarke then testified he started rubbing the top of her thigh with his right hand for approximately five to ten seconds. He stated that his hand was on top of her “clitoris” and that he was rubbing her jeans. After about 15 to 20 seconds he stated that he tried to use his right hand to undo the top of her pants which had two buttons. His left hand was still on her right breast. He stated that her left hand was behind her head with her right arm still on the door rest.
[26] Mr. Clarke stated that he struggled for a few seconds to undo the buttons on S.A.’s jeans and that she then assisted with both of her hands. He stated that S.A. put both of her feet on the dash and that she “pushed her bum up”. He stated that she did this so that she could pull her jeans down from over her waist to her mid-thigh. He further stated that she then kicked off her left shoe so that she could move her pants over her ankle.
[27] Mr. Clarke stated that they then went back to kissing and that he moved her panties out of the way and began to rub her clitoris. Mr. Clarke stated that S.A. was kissing him and that they had their eyes closed. Mr. Clarke stated that S.A. said nothing at this point and her left arm remained on the console with her right arm on the door rest.
[28] Mr. Clarke stated that after approximately 25 seconds rubbing her clitoris he then pulled his pants down just past his “butt”. He then put his fingers in her vagina. Mr. Clarke testified that S.A. was “just laying there” and that with her left hand she then touched his penis and played with it, rubbing it softly. He stated that S.A. did this for about 20 to 30 seconds. Mr. Clarke testified that after about 30 seconds he took his fingers out of S.A.’s vagina. He stated that he believed that S.A. was “enjoying the moment”. He stated that as S.A. had his penis in her right hand she said “please just take it slow”.
[29] In his evidence Mr. Clarke stated that he took those words to mean “don’t be rough, don’t be too fast”. Mr. Clarke then stated that he put the tip of his penis inside of S.A. and did not recall her reaction. He stated that his penis would not fit and that he “backed off a little” and then tried to put his penis back inside slowly. Mr. Clarke stated that during this process S.A. did not say anything and that she moved her left arm from the middle console with her other arm so that both of her hands were above her head. He stated that one of his hands was barely holding one of S.A.’s other hands. He stated that as he was trying to fit his penis inside of her but after about 45 seconds “nothing happened”. He stated that S.A. gave off a tiny noise that sounded like a mumble and that he stopped immediately and looked at her and asked “what is it?”. Mr. Clarke stated that S.A. did not respond and that he then continued to put more pressure on his penis to get inside of S.A. It was at this point that Mr. Clarke testified that S.A. then “yelled please get off me”. Mr. Clarke stated that he immediately stopped and hopped back into driver’s seat and apologized. When asked as to why he would apologize, Mr. Clarke stated that he did not have any reason to apologize but that because “she yelled at me” he apologized.
[30] After these events Mr. Clarke testified that they left the parking lot and drove for about ten minutes after which they turned around and ultimately he drove S.A. back to her home. He stated that she got out of the vehicle and did not slam the door. He stated that she walked calmly into her home and that there was no conversation. He confirmed that after June 30 he had no further conversation with S.A. and never saw her again.
[31] Mr. Clarke testified in chief that at no time did S.A. ever say no, nor did she ever give any indication that she did not want to be touched. He stated that she never pushed him away and he understood that he had her consent to kiss her when he did. He stated that all of the acts described were consensual including putting his penis inside her.
[32] In cross-examination Mr. Clarke agreed that when he reclined the passenger seat he did not ask S.A. whether her could come over onto her side of the vehicle and that he felt that it was okay because according to his evidence, she had not protested when he had initially kissed her.
[33] As for the unclipping of S.A.’s bra Mr. Clarke conceded in cross-examination that it was because S.A. had arched her back, that he interpreted this as something she did to allow him to proceed. He stated that as they continued to “make out” she never pushed him away and she never protested and as such, he moved forward because of her lack of objection to touching her breast. He conceded that when he attempted to take off her jeans he never asked her if this was okay and disagreed that the actions of S.A. as it relates to her jeans, were never an attempt on her part to push his hands away.
[34] Mr. Clarke conceded in cross-examination that he never asked S.A. as to whether it was okay to touch her under her underwear and that after he had rubbed her clitoris for about 20 to 25 seconds, he pulled his pants down and never asked her whether she was okay with this. He conceded in cross-examination “things were going well” and she had never protested. He then inserted two fingers into her vagina, conceding that he never asked her and that she never said this was okay. He conceded in cross-examination that this was “the next logical step”.
[35] Further in cross-examination Mr. Clarke denied that when S.A. touched his penis it was done to keep him away. Mr. Clarke further conceded that he believed that S.A. was enjoying everything but acknowledged that she never said she was enjoying it or felt good. Mr. Clarke conceded that he never asked her how she was feeling and that when, according to his evidence, she said words to the effect of “go slow” he did not say anything in response but that he took it to mean that it was okay to put his penis into her vagina.
[36] Mr. Clarke disagreed that S.A. was struggling and that it was after about 45 seconds of him trying to insert his penis while holding S.A.’s hands above her head that she then gave off a sound at which point he testified that there might possibly be something wrong. He then stated that because she did not say anything further, he continued in his efforts to insert his penis.
[37] In cross-examination Mr. Clarke testified that the entirety of what occurred took no more than two to three minutes between his first kiss and the attempted intercourse. He denied that he was in a hurry and disagreed that he was not taking his time. He acknowledged that S.A. was passive throughout. Mr. Clarke testified that he was of the view that there was a “slow ramp up” in his actions. He did, however, agree that he was the person moving things forward. In cross-examination Mr. Clarke agreed that he tested each step and came to the right conclusion and that in testing the waters with no objection, he then moved on to the next step.
Position of the Crown
[38] Mr. Barnes argues that the evidence of S.A. is credible and reliable and should lead the court to find beyond any reasonable doubt that she never consented to any form of sexual activity with Mr. Clarke. None of what S.A. did invited Mr. Clarke to engage in what Mr. Clarke described as consensual sexual touching and sexual intercourse.
[39] As it relates to the evidence of Mr. Clarke the crown argues that what happened in the Honda Civic was entirely for the sexual gratification of Mr. Clarke. His own evidence made clear that what happened took place in a very brief period of time and that as Mr. Clarke progressed from kissing, to touching, to attempted intercourse Mr. Clarke at no time took steps to confirm that S.A. was consenting.
[40] Mr. Barnes points to the evidence of the relationship between Mr. Clarke and S.A. to show why the evidence of Mr. Clarke lacks credibility. Specifically, Mr. Barnes refers to the fact S.A. and Mr. Clarke were essentially strangers to each other. Where the expectation for the evening was that they would hang out and smoke weed, Mr. Barnes argues that for Mr. Clarke to move from an unsolicited kiss to sexual intercourse over a span of three minutes demonstrates that Mr. Clarke never took steps to obtain S.A.’s consent.
Position of the Defence
[41] Mr. Knott quite rightly argues that because his client testified the court is required to engage in a W.D. analysis and that the actions of S.A. alone should raise a reasonable doubt about whether she consented to what happened in the Honda Civic. Specifically, Mr. Knott points to evidence that S.A. facilitated and thus consented to the actions of Mr. Clarke as he moved from a kiss to touching and then intercourse. He argues that when S.A. arched her back she implicitly consented to and facilitated the removal of her bra. He also points to the evidence of S.A. lifting herself off the seat as something she consciously did to facilitate, and thus consented, to the removal of her jeans.
[42] Mr. Knott argues that consent can be given both by words and by actions. In this case Mr. Knott argues that Mr. Clarke received the unambiguous consent of S.A. to move from one step of the sexual encounter to the next. While there were few verbal cues as to what S.A. was thinking Mr. Knott argues that when S.A. said “go slow” it was entirely reasonable for Mr. Clarke to interpret those words as words of consent.
[43] As for the evidence of S.A. itself Mr. Knott points to numerous inconsistencies in her evidence to the court and her police statement that should cause this court to have concerns about the credibility and reliability of her evidence. As well, it is noted that when S.A. did voice any concerns Mr. Clarke responded in an entirely appropriate manner. Specifically when S.A. said she did not want to go skinny-dipping Mr. Clarke did not press her to do so. When S.A. told Mr. Clarke to get off her Mr. Clarke did so and apologized. All of these actions on the part of Mr. Clarke it is argued demonstrates that he did what S.A. asked when asked to do so which reflect the actions of someone concerned for the well-being of S.A. as opposed to someone intent on taking advantage of her regardless of her wishes.
[44] Finally Mr. Knott refers to the conduct of S.A. after the sexual encounter in the car had finished. When S.A. asked to go for a drive as opposed to going home it is argued that S.A. demonstrated that she had no concerns with what had happened. In essence, this “post offence conduct” on the part of S.A. revealed her true state of mind i.e. nothing untoward had happened. If something bad had happened it is argued she would never have gone for a ten minute ride with a person who had just raped her.
The Legal Principles and Analysis
[45] Mr. Clarke began this trial with a clean slate. He is, like any accused person, presumed innocent of the charge unless and until the Crown establishes his guilt beyond a reasonable doubt. Mr. Clarke choose to testify. If I believe Mr. Clarke, I must acquit him of sexually assaulting S.A. Even if I disbelieve Mr. Clark, I must consider whether his evidence nonetheless leaves me with a reasonable doubt, in which case I must acquit. Only if I am certain that Mr. Clarke sexually assaulted S.A. can he be convicted.
[46] In applying the W.(D.) framework, I am guided by the following additional principles. In undertaking steps 1 and 2 of the W.(D.) framework, I must consider all of the evidence, not just the accused’s version of events in isolation.
[47] The second step of the W.(D.) analysis is important: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and may leave me with a reasonable doubt; or (ii) I may simply conclude that I do not know whether or not to believe the accused’s testimony in which case, the accused is entitled to an acquittal.
[48] In addition, in considering a credibility case, I am not to treat the assessment of the evidence as simply a credibility contest determined in favour of the party whose evidence I prefer. At all times, the issue is whether the Crown’s evidence has proven the offence beyond a reasonable doubt.
[49] As a final point I note that if, after considering all of the evidence, I simply do not know who to believe, I must find Mr. Clarke not guilty as I will not have been satisfied of his guilt beyond a reasonable doubt.
[50] Before I move to some of the legal principles that apply in a case of sexual assault it is important to address the role of defence counsel. Throughout her cross examination S.A. was clearly upset with questions that she was asked by Mr. Knott. While there were some objections by the Crown for the most part the questions asked of S.A. were entirely proper. Defence counsel are a fundamental part of the adversarial system that we call a criminal trial in this country. Mr. Knott understood that role as well as the importance of the rule in Browne v. Dunn.
[51] For many people testifying in a courtroom is very difficult. This is made all the more difficult when their evidence deals with highly emotional and/or personal matters. Trial judges must however ensure that the accused gets a fair trial which will by definition necessitate cross-examination of the complainant. The demeanor of S.A. in chief can be best described as that of a person who was largely in control of her emotions and spoke very softly. In cross-examination S.A.s demeanor was demonstrably different. She began with a whisper and ended with a voice full of anger and rage – mostly directed at Mr. Knott and his client.
[52] The demeanor of a witness is just one factor that a trial judge may consider when assessing the reliability and credibility of a witness. The Court of Appeal in R v. Hemsworth, 2016 ONCA 85 at paras. 44 and 45 provides the following guidance to trial judges:
[44] This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness's testimony: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, "[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.
[45] Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously: see R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significance in this case is the further principle that a witness's demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.
[53] I have considered the demeanor of S.A. while testifying and particularly the change in her demeanor between examination in chief and cross-examination. While testimonial demeanor is a notoriously poor indicator of credibility, it remains a factor I can consider along with all the factors that affect the credibility and reliability of a witness' evidence.
[54] In this case, I am not prepared to find that the testimonial demeanor of S.A. undermines her credibility. While defence counsel did not conduct an improper cross-examination, it was understandable that a complainant such as S.A. might have perceived the questions asked negatively or critically and responded defensively. This factor does not suggest that she is lying. That said, I am also not prepared to find that her testimonial demeanor supports or bolsters her credibility in any significant sense. As the caselaw recognizes, a person may have many reasons for reacting defensively to a stressful situation such as being cross-examined by defence counsel in a public courtroom.
[55] The case against Mr. Clarke comes down to an assessment of whether S.A. either by her words or actions provided consent to the sexual activity that took place in the Honda Civic. S.A. was clear in her evidence that she never consented and that she did not want what happened in the car to have happened. Mr. Clarke says that he believed S.A. did consent.
[56] The law as it relates to the offence of sexual assault has been clarified over the last 25 years by the Supreme Court in two seminal decisions; R v. Ewanchuk 1999 SCC and R v. Barton 2019 SCC. In Ewanchuk the court at para. 25 through para. 31 explains how trial judges are to deal with consent and makes clear that in Canada there is no such thing as implied consent in the context of a sexual assault trial. Specifically the Court held:
[25] The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, [1993] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293.
[26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d , [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.
[27] Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.
[28] The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
[29] While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
[30] The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
[31] Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt. Both he and the trial judge refer to this as “implied consent”. It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.
[57] The essence of Mr. Clarke’s evidence is that he moved from one step to another step as he determined S.A.’s consent to everything that he did - beginning with the first kiss and ending in the attempted penile penetration of S.A.’s vagina. The courts analysis of Mr. Clarke’s actions and the response of S.A. is fundamental to the determination of whether S.A. provided her consent to Mr. Clarke. In R. v T.S. 1999 O.J. 298 Hill J provided the following helpful guidance at para. 158 as to how trial judges might go about assessing the difficult question of whether consent has been established in the evidence:
As a general rule, non-verbal behaviours, when relied upon as expression of consent, must be unequivocal. Where this is not the case, avoidance of serious risk-taking, and the defeat of confusion, miscommunication, and unfounded assumption demands that reasonable steps be taken, not themselves involving sexually assaultive activity, to clarify the limits of any agreement to sexual touching. A person is not entitled to take ambiguity as the equivalent of consent: The Queen v. Esau, supra at 314 per McLachlin J. A sexual encounter between persons with no history of sexual experience together, in order to respect physical integrity and sexual autonomy, as a matter of logic and common sense, requires clear and unambiguous communication of consent, not self-serving interpretations of equivocal or contradictory behaviour. Depending on the facts, the context of a prior relationship together, may, in certain circumstances, impliedly provide scope for the perception of the existence of consent. That is not this case.
[58] Mr. Clarke makes clear in his evidence that he interpreted everything that S.A. did as confirmation that she was consenting to everything he did in the car. He kissed her and she responded by pressing her lips towards his lips. He reclined the passenger seat and S.A. facilitated him getting onto her passenger seat by repositioning her legs. He was able to unclasp S.A.’s bra when she arched her back. He was able to remove S.A.’s jeans when she assisted with the unbuttoning of her jeans as well as when she moved her legs into a position allowing her pants to be removed.
[59] Did S.A. consent to any of the activity in the front seat of the Honda Civic in the early morning hours of June 30, 2020? I begin with the first kiss. S.A. testified that she was surprised when Mr. Clarke leaned over and first kissed her. Her evidence in this regard makes good common sense. She had anticipated that she was going to hang out with Mr. Clarke and smoke weed. They had never gone out together before in a boyfriend/girlfriend relationship. They drive to a nearby park and shortly thereafter she is kissed. Nothing to that point would have made a kiss a logical first engagement between two individuals who only knew each other to say hi. I believe S.A. when she says she asked him what he was doing and that he then apologized. She conveyed from the outset that she was not interested in doing anything inside the car other than hang out and smoke weed.
[60] After the first kiss S.A. in her evidence made clear she did not want anything that happened thereafter. Counsel sought to impeach her evidence much because she did not give some of the details to the police in her police statement as she did in her evidence before this court. While it is true she may not have given the level of detail as she did in her trial evidence, fundamentally, her story as reflected in the police statement was the same.
[61] S.A. did not embellish her evidence. She was asked if Mr. Clarke fully penetrated her vagina. She said she could not recall. It would have been easy to embellish that part of her evidence but she did not. I believe her evidence in this regard.
[62] After the attempted penetration, S.A. told Mr. Clarke to stop. He did. She testified he apologized. Mr. Clarke conceded in his evidence that he did apologize. While Mr. Clarke stated in his evidence he had nothing to apologize about it is at this point that the evidence of S.A. and Mr. Clarke converge. The three minutes inside the car ended with an apology. I believe S.A. in this regard and that the apology was delivered by Mr. Clarke because he knew he had gone way too far and way too fast without ever getting the consent of S.A.
[63] It is conceded in the evidence of S.A. that she did not want to go home right away and that they went for a ten minute drive before Mr. Clarke drove her home. The evidence of Mr. Clarke confirms this ten minute drive. I accept the evidence of S.A. that by remaining in the car she was not signaling that she was not afraid of Mr. Clarke. Rather I accept her evidence that she was crying. How people react after a sexual assault can not be the subject of stereotypical myth. Certainly some people might be expected to immediately disassociate themselves from the perpetrator. The fact that S.A. remained in the car and allowed Mr. Clarke to take her for a ten minute drive and thereafter a drive home does not detract from the fundamental part of her evidence and that is she did not consent to anything that took place in the three minutes between a first kiss and attempted penile penetration.
[64] Mr. Clarke argues that when S.A. said words to the effect of “please go slow” it was reasonable for him to believe that S.A. had communicated her consent to vaginal intercourse. The Supreme Court in R. v. Goldfinch 2019 SCC 38 at para. 44 makes clear that consent must be “affirmatively communicated for each and every sexual act” and that not only does “no mean no but only yes means yes. Nothing less than positive affirmation is required.” The words of S.A. to “go slow” is hardly a yes. It is “maybe I am not ready for this”- at a minimum it called for some inquiry by Mr. Clarke. He made no such effort and moved forward for his own sexual gratification.
[65] Mr. Clarke testified that when S.A. said words to the effect of “go slow” that she was conveying her consent to further sexual interaction. Mr. Clarke denies that S.A. ever conveyed either by her words or her actions that she did not want to have any sexual interaction with Mr. Clarke.
[66] The assessment of the evidence of Mr. Clarke and S.A. needs to begin with what understanding they each had as to what they were going to do in the early morning hours of June 30 together with an understanding of the nature of their relationship. Starting with their relationship it is fair to say they were not strangers. But it is equally fair to suggest they were not in a boyfriend/girlfriend relationship. Factually they knew each other from high school. They had texted each other in the past but this was not a frequent occurrence. They were at most acquaintances. As merely an acquaintance, S.A.‘s evidence that she did not consent to anything that happened in the car makes sense.
[67] What then could S.A. have anticipated that would make sense. The text messages that preceded Mr. Clarke picking S.A. up from her home made clear they were going “to hang out” and “smoke some weed”. Nothing in those text messages would have alerted S.A. to the fact that Mr. Clarke might have other intentions - intentions that were quickly revealed when they got to the park.
[68] Soon after they initially arrived at the park Mr. Clarke suggested that they go skinny dipping. While skinny dipping might be seen as part of what teenagers (and even adults) might do for innocent fun, as it relates to the evening of June 30 it is the finding of this court that Mr. Clark’s intentions were not innocent. There is no evidence that Mr. Clarke gave any intimation to S.A. that she should bring a bathing suit with her. For S.A. to have considered going for a swim meant she either had to swim in her clothes; remove her outer clothes and swim in her underwear; or remove all of clothing and thus go skinny dipping. Mr. Clarke demonstrated from the beginning of their evening together that he wanted to have some kind of sexual interaction with S.A. - as demonstrated by his suggestion that they go skinny dipping; this with a person he had never been out with on a one on one basis.
[69] Mr. Clark’s next action after they had returned to the park from a brief drive also reflected where he wanted things to proceed with S.A. who had agreed to “hang out” and “smoke weed”. She never consented to being kissed and I accept her evidence that when Mr. Clarke leaned over to give her a kiss that she was surprised by his actions. I do not accept Mr. Clarke’s evidence that he interpreted S.A.’s response as her consent to move further.
[70] Mr. Clarke would have this court believe that he then moved carefully one step at a time to ensure that S.A. was responding in a manner consistent with her consent and that she was enjoying what he was doing. In fact, accepting Mr. Clarke’s evidence at its highest he moved from a kiss; to reclining the car seat; to unclasping S.A.’s bra; to fondling S.A.’s vaginal area through her jeans; to removing her jeans; to fondling S.A.’s vaginal area under her underwear; to twice attempting penile penetration - all within a span of less than three minutes.
[71] The relationship, such as it was on the evening of June 30, was not a relationship that had ever involved any sexual interaction between Mr. Clarke and S.A. As noted by Hill J.in T.S. logic and common sense required Mr. Clarke to ensure that there was clear and unambiguous communication of consent by S.A. In this case Mr. Clarke relied on his self-serving interpretation of what at best can be described as equivocal and or contradictory behaviour on the part of S.A. There was no prior relationship between S.A. and Mr. Clarke that could justify any perception by Mr. Clarke that would have allowed him to think that S.A. consented to anything he did in the car.
[72] I do not accept the evidence that Mr. Clarke had an honest belief that all of the responses by S.A. as he progressed from a kiss to attempted penile penetration were demonstrative of S.A.’s consent and reflective of her enjoying what was happening. It was only when she yelled at him to get off of her that he stopped – and he apologized. I accept the evidence of S.A. that she never gave any form of consent to what happened. I accept her evidence that she did not want any form of sexual interaction with Mr. Clarke. Her expectation was they would hang out and smoke weed - nothing more and certainly not what happened in the span of 3 minutes.
[73] The evidence of Mr. Clarke fundamentally does not make sense. He goes from an unwanted kiss to attempted penile penetration in 3 minutes - and according to him she's fine with everything. It is noteworthy that Mr. Clarke agrees that at the end she yells at him to get off her, which he does quickly. He then apologizes. If things were going the way he says, this turn of events would not make sense. The reality is that she yells at him because he is persisting with unwanted sexual activity.
[74] As well, on his version of events, she is essentially passive. Her conduct does not unequivocally communicate consent. Quite the opposite, her comment "take it slow" suggests she is not comfortable with what is happening. He does nothing in the face of that comment. His attempt to explain that comment as indicative of consent lacks credibility.
[75] I do not believe Mr. Clarke. I accept the evidence of S.A. I have no reasonable doubt that Mr. Clarke sexually assaulted S.A. on June 30. Mr. Clarke is convicted of sexually assaulting S.A.
Justice M.L. Edwards, R.S.J.
Released: March 8, 2024
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.