Court File and Parties

Court File No.: CRIM NJ(P) 24/23
Date of Judgment: June 30, 2025
Court: Ontario Superior Court of Justice

Between:
His Majesty the King (represented by R. Chhibber)
and
C.D. (represented by S. Amjad)

Heard: May 12-14, 16, 26-27, 2025

Judge: Fowler Byrne

Publication Ban

An Order has been made pursuant to s. 486.4 of the Criminal Code directing that the identity of the complainant and any information that could disclose such identity shall not be published or broadcast or transmitted in any way. This version has been modified to comply with that order and is not subject to it.

I. Overview

1C.D. is charged with one count of sexual assault under s. 271 of the Criminal Code, R.S.C., 1985, c. C-46.

2The offence covers a twelve-year period, from May 1, 2010, to February 28, 2022, during which he and the Complainant were in a common law relationship. The Complainant and C.D. are both currently 42 years old. They share two children, who are now 14 and 13 years old. The children currently live predominantly with C.D. and the Complainant has regular parenting time.

3Both C.D. and the Complainant testified. While they agree on certain facts about how they came to know one another and some of the circumstances surrounding their sexual activities during the relationship, as described below, their testimony differs in important respects, giving rise to the issues set out below.

4In order to convict C.D. of sexual assault, I must be satisfied beyond a reasonable doubt of each of the following essential elements:

a) That C.D. intentionally touched the Complainant in circumstances of a sexual nature;
b) That the Complainant did not consent to that touching; and
c) That C.D. knew that the Complainant did not consent to that touching.

5C.D. and the Complainant agree that the first essential element has been proven beyond a reasonable doubt, and is not in issue. However, they disagree about the second and third essential elements. Accordingly, the issues for me to decide are:

a) Has the Crown proved beyond a reasonable doubt that the Complainant did not consent to the sexual activity in question?
b) If so, has the Crown proved beyond a reasonable doubt that C.D. was aware that the Complainant did not consent to the sexual activity in question?

6The difficult aspect of this case is that the indictment is for a 12-year period. The parties shared a life together and had consensual sexual encounters during that period. That being said, just because the Complainant consented to sexual activity with C.D. in the past, even during the indictment period, it does not mean that she consented to every sexual activity that occurred. It would be an error of law for me to draw this inference: see s. 276(1)(a) of the Criminal Code. Accordingly, the Crown must prove beyond a reasonable doubt what sexual activity took place during the relationship that the Complainant did not consent to, and for those instances, it must also prove beyond a reasonable doubt that C.D. was aware that the Complainant did not consent on those occasions.

7For the reasons set out below, I find that the Crown has not proven beyond a reasonable doubt that the Complainant did not consent to the sexual activity in question. I also find that the Crown has not proven beyond a reasonable doubt that C.D. knew that the Complainant did not consent to the sexual activity in question.

8Accordingly, I conclude that C.D. is not guilty of the offence of sexual assault.

II. Background

9C.D. and the Complainant originally met in high school in 1997 or 1998 and then lost touch for approximately ten years. They then reconnected through social media and started dating around the beginning of 2010, when the Complainant was 27 years old. In or around May or June of that year, the Complainant discovered she was pregnant. The parties decided to start living together.

10Their first child was born in February 2011. Very quickly thereafter, in April 2012, their second child was born.

11The Complainant described a relationship whereby C.D. had constant sexual demands. She was always expected to have some type of sex with him, whether or not she was tired, working, or ill. She was expected to perform fellatio on him every day. He expected to have anal sex at least once per week and then at least once per month in the later years of the relationship. He would sometimes film them. Sometimes he would play pornography on his phone and ask her to perform fellatio. Later in the relationship, he liked to urinate on her prior to sexual activity. The Complainant stated that this latter activity happened about 12 times in the relationship.

12C.D. agreed that the parties would have oral sex, or anal sex, in addition to vaginal sex, but not as frequently as reported, and that it was always with the Complainant’s consent. He denied ever urinating on the Complainant.

13The parties do agree that on occasion, they would discuss what type of sex they would have, and it would proceed on consent. They also agreed that on other occasions, if C.D. asked for something particular, like anal sex or fellatio, and the Complainant did not agree, the negotiation or bartering would commence. If he asked for anal sex, and she said no, he would then ask for vaginal sex or fellatio. When one type of sex was declined by the Complainant, there was a constant discussion until something else was agreed to.

14If the Complainant refused any type of sexual activity, the Complainant and C.D. agreed on how C.D. would react, behaviour which the Complainant described as manipulative, or passive aggressive. When turned down, C.D. would get angry and leave the room. He would start playing video games with or without their children and ignore her, or else he would leave the house entirely and go hang out with one of his friends. He would not talk to her. During these times, if he spoke to the Complainant at all, he would say things like “you don’t really love me”, “why won’t you show me that you love me by doing the things I ask?”, “you are ruining my mood” or “you are ruining sex for me”. C.D. does not deny this conduct which occurred after he was turned down. He said during the trial that sometimes he did not believe the Complainant’s excuses about why she could not participate in sexual activity and thought that she was just “lazy”. He also said that his behaviour would “work” because when he did return to the house, or the next time he asked for the same type of sex that was declined, the Complainant would then be willing. By contrast, the Complainant stated that when she was asked again, she would comply, not because she wanted to, but because she wanted to restore peace in the house, or because she knew, if she didn’t agree to what he wanted eventually, the passive aggressive and manipulative behaviour would continue and make her life very difficult.

15The Complainant also described another scenario. In these situations, she would agree to a certain type of sexual activity, but in the middle of their sexual activity, C.D. would then start a new type of sexual activity, to which she did not consent. It could have been something that she turned down first, and thought she had “bartered” off the table. Other times, he just did something different altogether without prior discussion. She stated that sometimes she would verbally object. Other times she would cry or say things like “ow”. She said in the last few years of the relationship, she didn’t bother saying anything because she did not believe it would make a difference. I pause here to note that C.D. is not alleging mistaken belief in consent. He maintains that all sexual activity, even if it changed in the middle, was with the Complainant’s consent.

16When asked specifically if C.D. would keep to the sexual activity to which she agreed, she replied “sometimes”. For example, she would agree to anal sex but asked him to not alternate between anal sex and vaginal intercourse. He would alternate anyway without getting her consent before. Sometimes she would indicate that she was hurting, or she would cry. Sometimes she would ask him to stop, but he would not. If they started one sexual activity and he started another type of sexual activity, he would not find out if she was okay with it before he started. She said that most of the time, she asked him to stop, but he did not.

17By contrast, C.D. said that if he did switch the type of sexual activity in the middle of their ongoing sexual activity, he would respect the Complainant if she said she wanted to stop, and he would. On those occasions, he would stop, leave and resort to the described emotionally manipulative behaviour.

18After describing this pattern of behaviour, the Complainant was asked for specific instances of sexual assault. The Complainant detailed three specific episodes.

19The first alleged instance of sexual assault happened when the Complainant was eight and a half months pregnant with her first child. She stated that she was at home and C.D. was out with his friends. She became worried when it was 2:00 a.m. and he was not answering his phone. He eventually pulled into the parking lot at 2:45 a.m. The Complainant stated that he was drunk. They argued. When they went to bed, C.D. stated that he wanted sex, and she agreed to vaginal sex. Instead, she states that he had anal sex with her. She asked him to stop at least once but may have just cried. He did not stop until he ejaculated, which took about 7 minutes. He then fell asleep.

20C.D. recalls this scenario differently. At first, he testified he believed they had had anal sex before that time, and he remembered the occasion “for the most part”. He then said that he could not remember whether they had vaginal or anal sex that night and that he was not 100% sure that she said yes. At that point, his lawyer asked to end the day early because his client was not doing “particularly well.”

21The next day, when his evidence continued, C.D. clarified his evidence. He stated that he asked her for anal sex that night, and she agreed. He said it was the first time they had anal sex. He said he was gentle. When asked about why his evidence changed, he stated:

A. Honestly, at that moment [referring to his first day on the witness stand], when I pulled out the chair, I actually hurt my shoulder. And I'm also dealing with some psychological trauma, that I'm off on WSIB for. I couldn't have even told you my name at that point because of the pain I was in, actually.
Q. Okay. Do you have an injury in - on - in your shoulder?
A. Yes. Actually, my spinal cord, I have the MRI results there. Yeah. I have - I'm, I'm going to the physio twice a week. And Wednesday was supposed to be my last appointment and today, actually. So I've been, you know, neglecting my treatment currently.
Q. Mm-hmm.
A. But yeah. So I have a spinal cord injury that's affecting my nerves. So I'm on a nerve medication. I'm on Baclofen for the nerves, as well as the back pain from the car accidents in February. And I'm going to treatment at New Path Pain Clinic for, for that as well. So I'm on anxiety medication because of the psychological trauma from work, and I have all the documents there. But...
Q. Okay.
A. ...when the anxiety kicks in, I - my bling – my brain goes empty.
Q. Okay. Okay. On Wednesday afternoon, when you were testifying, had you taken your meds on a timely - in a timely fashion?
A. No. I'd, I'd forgotten to bring them here. I left them in the car, and I didn't even think about it. Once I got my meds, it takes about a good hour or two to kick in anyways.
Q. Okay.
A. So I, I was at my worst, pain-wise, at that point in time.

22C.D.’s explanation – first that he was in so much pain, and secondly, that his anxiety caused his brain to go blank - was not fully explored in cross-examination.

23The Complainant then described a second incident in approximately 2013 or 2014. The children were in bed. The Complainant and C.D. were watching a movie called I Spit on Your Grave. There was a rape scene in the movie. The Complainant said that it excited C.D. who told her that he wanted to have anal sex. The Complainant stated that she agreed to anal sex but asked that he be gentle and kind. He was not. She does not remember specifically asking him to stop but believed she probably did so at least twice. Afterwards, they returned to watching the movie.

24C.D. again, recalls this scenario differently. He denied being sexually aroused by a rape scene. He recalled that when the movie ended, the Complainant initiated sexual activity by sitting on his lap, and they had consensual vaginal sex in the living room. He denied there was any anal sex that night.

25The Complainant also recalled a third occasion, in the summer of 2018, around 8:00 p.m. or 9:00 p.m. The children were either in their room or asleep. The Complainant stated that she told C.D. that she was going to take a shower. C.D. told her that he wanted her to sit in the bathtub so he could urinate on her. She agreed as long as he didn’t get it in her eyes or mouth. C.D. urinated on her, but then surprised her by forcing her to perform fellatio. He then ejaculated over her face and chest. When his penis was in her mouth, she states that she was not allowed to catch her breath and she actually vomited. She said she was crying. She claims that the more upset she got, the more excited he became.

26At first, C.D. testified that on this occasion, the Complainant offered to have C.D. come to the shower with her so she could perform fellatio on him. She knew that he liked to ejaculate on her face afterwards. He denied ever urinating on her. He said that she performed fellatio while he had his hands behind his head and that nothing was forced. She never gagged or vomited, and she never cried. He ejaculated on her face. He remembered that she would perform fellatio on him and let him finish on her face at least a dozen times during their relationship. The last time he remembered them doing it was in October before they separated, around the time of his birthday.

27The trial was then required to take a break for a week, after which the Crown commenced its cross-examination of C.D. In cross-examination, C.D. claimed that he spent some time thinking about it and now believed that he was wrong that this occurred in the summer of 2018. He then believed that the event that most resembled the event that was described by the Complainant was probably when she performed fellatio on him in October 2021. That was when she walked from the bedroom and invited him into the bathroom because she had to shower before work. He does not remember those particular circumstances on the other occasions when she performed fellatio in the shower. He does recall there were other occasions in 2018 that she performed fellatio in the bathtub, but they were not the same set of circumstances as the Complainant described in her evidence.

28When asked if she could recall any other specific incidents, the Complainant said that she could not. When asked how often she was sexually assaulted, she said it could be every couple of months, or weeks, depending on what was happening. For example, if C.D. was having a hard time at work, or if she did not give him sexually what he wanted. He would continue the behaviour until he got what he wanted, and until she agreed.

29The Complainant stated that she wanted to leave the relationship for a long time. It was not until her grandfather passed away in December 2021 that she started seeing a psychiatrist and saw that she was not in a healthy relationship. She finally ended the relationship in February 2022 but did not move out until the end of March 2022.

30Given that C.D. and the Complainant co-parented after their separation, they did communicate from time to time. Some months after separation, the Complainant started recording their telephone calls. The Complainant played one such telephone call recording that took place on September 21, 2022, approximately seven months after their separation. Both parties agree that this was a telephone conversation that took place as between them. In the conversation, C.D. expressed remorse for some things, and was trying to reconcile with the Complainant. He said that he had consumed alcohol before he made the call. After some discussion about some aspects of their relationship, the parties discussed the ongoing supervision of their children and possible custody outcomes in their family law matter.

31With respect to the charges before the court, some of the more pertinent statements are as follows:

C.D.: …And I know it’s gonna take a lot of time for you to understand that this is (inaudible) perfect that I can guarantee more time that goes by the more you’re gonna see. (Inaudible) choice or you and for your kids and for us. I can be everything that you want me to be, and I can be (inaudible). You and I can be (inaudible) again. I am capable of that (inaudible) myself (inaudible). I am truly sorry for not listening to you, for putting you through some of the things that I’ve put you through sexually, for not listening to you. (Inaudible) I’m sorry and I will never do those things to you again. You mean the world to me. And I, I truly am just I’m disgusted with myself for the stuff I put you through sexually. You know, I know I never forced you to do anything but it’s, it’s almost like I did because you didn’t really have a choice, you know what I mean?

Complainant: Yeah.

C.D.: I’m sorry for that. I never respected you. I’ve not (inaudible) all evidence of that has just killed me, you know what I mean? Like I, I was angry with you, and I took it out on you sexually and that’s just that’s a horrible thing and I am so sorry. I don’t blame for you (inaudible) the way you did. And I know it was just I had no outlet for my anger. I had nobody to talk to. I just felt like you just (inaudible) all in. The more and more I kept in on how you made me feel negative ‘cause I wasn’t being listened to either. I took it out on you sexually. I took it out on you by not listening to you. But I see all this now. I never saw it before….

32In July 2023, C.D. was given primary residence of the children in a family court proceeding. The Complainant stated that this was because she currently does not live close to the children.

III. Issue One – Did the Complainant not Consent to the Sexual Activity in Question?

33As indicated, the indictment covers a 12-year period. Leading up to the trial, when speaking to the police, the Complainant had never provided specific details of any particular incident where she was sexually assaulted, but described 12 years of consensual sex, emotionally manipulative sex, or nonconsensual sex, and gave general examples of what took place, without specific reference to time or place. While she described an almost daily demand for sexual activity, at trial she stated that she experienced sexual assault every couple of months, or weeks, depending on what was happening. It was not until asked specifically at trial to give particulars of an alleged sexual assault, that she gave specifics on three particular instances.

34As a result, with the exception of the three examples given at trial, it is not possible to be satisfied beyond a reasonable doubt that the Complainant did not consent to the sexual activity throughout the relationship.

35Accordingly, I will focus my analysis on those instances that the Complainant gave sufficient particulars that will allow me to determine if her consent was not forthcoming.

A. Legal Principles

36Consent is defined by the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1). It is the conscious agreement of the complainant to engage in every sexual act in a particular encounter and must be given freely, must exist at the time of the sexual activity, and can be revoked at any time: R. v. Barton, 2019 SCC 33, para 88.

37Given that the first essential element of this offense has been admitted, the second essential element, the absence of the subjective consent of the Complainant, is the remaining actus reus component of the offence, and it must be proven beyond a reasonable doubt. This consent is with reference to the Complainant’s internal state of mind. In other words, I must determine whether the Complainant wanted the sexual activity to take place: R. v. Ewanchuck, para 26.

38Whether or not the Complainant subjectively consented is a matter of credibility to be weighed in light of all the evidence: Ewanchuck, paras 30-31; Barton, para 89. The Complainant need not express her lack of consent, or her revocation of consent, for the actus reus to be established: R. v. J.A., 2011 SCC 28, para 37.

39I must also be mindful that consent to one act does not amount to consent to another act. Consent must be given for each and every sexual act engaged in. For example, agreement to one form of penetration is not an agreement to any or all forms of penetration: R. v. Hutchinson, 2014 SCC 19, para 54; R. v. Kirkpatrick, 2022 SCC 33, para 44.

40Consent cannot be implied because of a pre-existing relationship, like a common law partnership or marriage: J.A., para 64. Consent cannot be implied by the complainant’s silence, passivity, or ambiguous conduct: R. v. Kruk, 2024 SCC 7, para 36.

41In this case, if I accept the Complainant’s evidence that she did not consent to the sexual touching in question, beyond a reasonable doubt, then this element of the offence is proven. Only if I find that there was consent, or I have reasonable doubt about the Complainant’s consent, do I need to determine if the consent was vitiated in any way: R. v. G.F., 2021 SCC 20, para 53.

42C.D. testified in these proceedings. Accordingly, I must also be mindful of the direction provided by the Supreme Court of Canada in R. v. W.(D.). If I believe C.D.’s exculpatory evidence, then I must find him not guilty. Even if I do not believe C.D.’s evidence, but it leaves me with a reasonable doubt about his guilt, or one of the essential elements of the offence, I must find him not guilty.

43If, after a careful consideration of all the evidence, I cannot decide whether I believe C.D. or the Complainant, I must find C.D. not guilty because that means that Crown counsel would have failed to prove C.D.’s guilt beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, para 12.

44Even if C.D.’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of the offence charged, I can only convict him if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt: W.(D.).

45Finally, I may reject C.D.’s evidence based on a way he testified or based on the substance of his evidence. I may also reject his evidence after a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence of the Complainant: R. v. J.J.R.D., para 53.

B. Analysis

46I will address each alleged instance of sexual assault, in turn.

1. 2011 Incident

47The Crown argues that the evidence shows beyond a reasonable doubt that the Complainant did not consent to the sexual activity in question.

48The Crown argues that the Complainant had a very clear recollection of the events of that night, and she was not seriously challenged on her recollection. She remembers it clearly because she was very pregnant. She was worried about where C.D. was and called the friend she thought he was with when he did not come home. She also recalls calling the police because it was suggested that he may have been pulled over. She recalls the police asking if C.D. would just leave, and she recalls telling the police that it was unlikely because she was eight months pregnant. She also remembers arguing with C.D., and then them making up. She remembers that he asked for vaginal sex, and she remembers that she agreed to that, and turned her back to him in order to do so. She remembers she was surprised when he penetrated her anally. She also remembers telling him to stop and maybe even crying.

49The Crown also argues that the reason that the Complainant did not give particulars of this event to the police was because she was not asked to provide particulars. She testified that she always assumed that there would be another interview. When she was not contacted again, she tried to contact the officer in charge, but was told she was on sick leave. She also tried to contact her victim support person but was advised that this person was removed from the case.

50I disagree with the Crown’s submission. During her testimony, the Complainant was pointed to various times during her interview with police that she was asked for specific details and she did not give any. I do concede that the Complainant said she was nervous, but she made the decision to call the police. When the police interviewed her at her place of work, when she made the general allegations, she was told that they would need more details going forward. She then later attended to make a more formal complaint. Again, there were no specific details.

51I have considered C.D.’s evidence on this point. Bearing in mind that he would have no direct knowledge of the Complainant’s subjective frame of mind, he was able to observe and hear the following:

a) He asked the Complainant whether she would be agreeable to anal sex on this occasion, and she agreed;
b) Theydid not have any other type of sexual activity that night;
c) He was not aggressive at all, but was slow and delicate, especially due to the fact that she was pregnant; and
d) He believed that because of her reaction during the sexual activity, she continued to consent to the anal intercourse.

52C.D. also indicated that he and the Complainant had discussed anal sex prior to this occasion and the Complainant had indicated earlier that she would consider it, with stipulations. It would be an error of law, though, for me to consider this as evidence of the Complainant’s consent. As indicated above, consent must be given at the time of sexual activity, and not in advance. Whether or not they even had anal sex before this time, or agreed to consider it, cannot be evidence that she is more likely to have consented to this occasion.

53I do not accept C.D.‘s evidence on this essential element. I have so determined mainly because of the inconsistency in his response. Initially, he could not even remember what type of sex they had and he was not 100% sure if the Complainant agreed to it. I do concede that C.D. tried to correct his evidence the following day, but the reason for his change in evidence was also confusing. First, he said he was in too much pain due to hurting his shoulder. Then he said he was in too much pain due to back pain. Then he said he had anxiety, which makes his mind go blank. I had no independent evidence of any of these conditions.

54Nonetheless, I do have reasonable doubt about whether the Complainant did not consent to anal sex on this occasion. The Complainant did testify that on many occasions, when asked to allow anal sex, she declined and then the negotiations started for something else. She said to the police that sometimes she would comply just to keep peace in the house, or to end the passive aggressive behaviour by C.D. She also testified that sometimes C.D. would respect a “no”, and not pursue anything else, but would behave in the way described above. She stated that sometimes anal sex was consented to.

55Accordingly, given the various possibilities of what could have occurred, I find the Complainant’s evidence to be unreliable as to what times she consented and what times she did not, and whether she withheld her consent on this particular incident.

2. 2013/2014 Incident

56Based on the facts described herein, the Crown argues that the evidence shows beyond a reasonable doubt that the Complainant did not consent to the sexual activity on this occasion. In support of this position, the Crown relies on the following evidence:

a) In the middle of the movie, C.D. said he wanted to have anal sex;
b) The Complainant agreed to it on the condition that he was gentle; despite this, C.D. was not gentle; she continued to ask him to be gentle at least twice during the anal sex, but he was not.

57I do not accept the Crown’s submissions. On the issue of the Complainant’s consent for this particular instance, I am left with a reasonable doubt. In particular,

a) The Complainant did agree to have anal sex, and that was the only type of sexual activity they engaged in;
b) While she has a vivid memory of the apartment and the movie, she never mentioned this event to the police in any manner;
c) When she was cross-examined about whether she told C.D. to stop, she was not sure, but did indicate that she just wanted to get it done. Again, I do not take her failure of telling C.D. as an indication of her consent, but rather her uncertainty about what occurred in general.

58In contrast, C.D. also remembers the apartment and the movie, but he does not recall any anal sex that night. He claims they had consensual vaginal sex that night, after the movie. In fact, he testified that the Complainant specifically asked for intercourse that night.

59Accordingly, in this situation, I do have reasonable doubt about whether the Complainant did not consent to the sexual activity on that night.

3. 2018 Incident

60The Crown argues that the evidence shows beyond a reasonable doubt that the Complainant did not consent to the sexual activity in question. In particular, the Crown points to the fact that C.D. changed his evidence with respect to what happened. First, he testified that they had oral sex in the summer of 2018, but it was consensual. Later, after a week, he changed his evidence to say that the event the Complainant described actually took place in the fall of 2021, but did not include urination and was completely consensual.

61I disagree with the Crown’s submissions. I find that the Crown has not proved beyond a reasonable doubt that the Complainant did not consent to the sexual activity in question.

62I make this finding for a number of reasons. I do not accept C.D.'s evidence on this point. His evidence changed over the course of the trial. This is not the first time that his evidence changed.

63All the evidence considered together, though, does leave me with a reasonable doubt. First, the Complainant was not able to say with any accuracy when this occurred. She remembered the address of their apartment, but the parties lived there for several years. The Complainant also does not remember her conversation with C.D. in detail.

64Also, the timing does not make sense in that she was supposed to go to work at her job in a grocery store afterwards but says that it occurred at 8:00 p.m. or 9:00 p.m. that night. This makes her evidence as to this particular incident unreliable.

65Further, the Complainant did not describe this incident in any great detail with the police, other than to report that he liked to urinate on her.

66Finally, in cross-examination, the Complainant conceded that the situation she described, where C.D. urinated on her, followed by fellatio, is how this type of encounter would usually go. When asked if she remembered that this was exactly how it unfolded on that day, she said “no”.

67Accordingly, I cannot find that the Crown has established beyond a reasonable doubt that the Complainant did not consent to this interaction as she described on that day, or that it occurred as she described.

4. Was Consent Vitiated?

68Given that I have found reasonable doubt of the Complainant not consenting, I must consider whether any consent given was vitiated.

69Section 265(3) of the Code outlines four situations in which consent will be found to not exist: when there was an application of force, when there was a fear of application of force, where there was fraud, or an exercise of authority.

70Section 273.1(2) also outlines when consent cannot be obtained, such as when the Complainant is unconscious, is incapable of consenting, the accused is in a position of trust or authority, where the Complainant actually expresses, by words or conduct, that she does not consent, or when the Complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue in the activity.

71In the case before me, the facts raise three possible circumstances of vitiated consent: the alleged use of force by C.D. during the sexual activity, the Complainant’s alleged expression of her lack of consent, or her alleged expressed lack of consent during the sexual interaction. Whether or not consent was vitiated in any of these situations, is a question of law: Criminal Code, s. 273.1(1.2).

72As indicated, I have reasonable doubt about whether the Complainant expressed her lack of consent during the three incidents described. The Complainant was very forthright in saying that sometimes these sexual activities were on consent. While I may accept that at times she said “no”, her evidence on when that occurred is unreliable, for the reasons already set forth.

73As for the use of force, at most, the Complainant indicated that sometimes when C.D. changed the sexual activity, he did not seek her consent. The Complainant, though, also testified that sometimes, when she expressed her lack of consent, C.D. stopped what he was doing and withdrew completely. It was then that he started behaving in an emotionally manipulative manner. In those circumstances, she would then consent afterwards – not due to fear of force, but to “keep peace in the house” or to stop the emotional badgering. Although C.D.'s behaviour in these instances was abhorrent and extremely juvenile, it does not rise to the level of criminal responsibility.

C. Conclusion on Issue One

74Accordingly, I find that the Crown has not proven beyond a reasonable doubt that the Complainant did not consent to the three instances of sexual activity described in her evidence.

75Given this conclusion, it is not necessary to determine whether C.D. knew that the Complainant did not consent. That being said, in the interest of completeness, I will also review the other outstanding essential element.

IV. Issue Two: Did C.D. Know that the Complainant did not Consent to the Sexual Activity?

A. Legal Principles

76The Crown must prove beyond a reasonable doubt that C.D. was aware that the Complainant did not consent to the sexual activity in question. This is the mens rea component of the offence. To prove that C.D. was aware of the Complainant’s lack of consent, the Crown must prove one of the following:

a) That C.D. actually knew that the Complainant did not consent to the sexual activity in question;
b) That C.D. knew there was a risk that the Complainant did not consent to the sexual activity in question and C.D. proceeded in the face of that risk; or
c) That C.D. was aware of indications that the Complainant did not consent to the sexual activity in question, but deliberately chose to ignore them because C.D. did not want to know the truth.

77C.D. has not argued that he had an honest, but mistaken belief in her consent.

B. Analysis

78The Crown argues that the evidence shows beyond a reasonable doubt that C.D. was aware that the Complainant did not consent to the sexual activity in question. In particular, the Crown relies on the telephone call between the Complainant and C.D. detailed above.

79Without a doubt, in this call, C.D. has admitted to sexual manipulation as against the Complainant. His words could not be clearer:

I am truly sorry for not listening to you, for putting you through some of the things that I’ve put you through sexually, for not listening to you. (Inaudible) I’m sorry and I will never do those things to you again. You mean the world to me. And I, I truly am just I’m disgusted with myself for the stuff I put you through sexually. You know, I know I never forced you to do anything but it’s, it’s almost like I did because you didn’t really have a choice, you know what I mean?

Like I, I was angry with you, and I took it out on you sexually and that’s just that’s a horrible thing and I am so sorry. I don’t blame for you (inaudible) the way you did. And I know it was just I had no outlet for my anger. I had nobody to talk to. I just felt like you just (inaudible) all in. The more and more I kept in on how you made me feel negative ‘cause I wasn’t being listened to either. I took it out on you sexually. I took it out on you by not listening to you. But I see all this now. I never saw it before….

80C.D.’s explanation for his choice of words is simply not credible. At trial, he said by “sexual”, he was referring to his behaviour in walking out on her if rejected and emotionally pressuring her into having the type of sex he wanted. He said by saying that she had no choice, he was referring to her being financially dependant on him.

81C.D.’s explanation for this phone call was different when he was interviewed by the police upon being charged. At that time, he never referred to the emotional manipulation he put the Complainant through. He never said that he meant that she was financially dependant on him. In his interview, he said that all their problems started because of the pain she started experiencing during vaginal sex after her c-sections and her tubal ligation. The parties agree that both their children were born by Caesarean section. When the second child was born, the Complainant elected to have a tubal ligation, so as to prevent anyfurther pregnancies. Either the Caesarean sections or the tubal ligation caused some intermittent and ongoing discomfort for the Complainant during vaginal intercourse.

82Accordingly, when C.D. said “you did not have a choice” he maintains he was referring to the pain she experienced, and how it was not her choice for this to happen to her. He said they had anal sex during her pregnancies at the later stages, because it was uncomfortable otherwise, and afterwards due to the pain with vaginal sex on one side.

83Reviewing the police interview as played at trial, C.D.’s explanation for his words makes no sense, and does not flow logically from their conversation. His explanation is simply not credible. Once again, he changed his evidence.

84I do, though, have reasonable doubt that this phone call amounts to a confession of him knowing that she did not agree to some of their sexual activity. Primarily it is not clear what sexual activity he is speaking about. Given that the Complainant testified that some sexual activity was consensual, it is hard to determine, without a reasonable doubt, what he is referring to. Again, I am not making this determination by assuming she consented because she consented on other occasions. I am making this determination because I cannot determine if he knew she withheld her consent on the three instances that she testified about.

85As well, C.D. testified that during this phone call, they were also discussing a historic molestation that the Complainant was a part of in her youth, which she told C.D. about some time during their relationship, if not near the end. In this phone call, he spoke about how it angered him and caused him to behave the way he did. Given that I have no evidence as to when this information was disclosed to him, it is hard to pinpoint what sexual activity he is referring to.

C. Conclusion on Issue Two

86Apart from this phone call, there is no other evidence that shows, beyond a reasonable doubt, that he knew that the Complainant did not consent to the three instances of sexual activity described at trial. I have the same difficulties with the reliability of the Complainant’s evidence as described earlier. Accordingly, the Crown has failed to prove this second essential element beyond a reasonable doubt.

V. Conclusion

87As a result, I find that the Crown has failed to prove beyond a reasonable doubt the two remaining essential elements of the offence. Accordingly, I find C.D. not guilty of the offence of sexual assault.

Released: June 30, 2025

Fowler Byrne