R. v. W.A.T., 2011 ABQB 328

Court of Queen ’ s Bench of Alberta Citation: R. v. W.A.T., 2011 ABQB 328 Date: 20110512 Docket: 09067811Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - W.A.T. Accused Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on May 13, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on May 20, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________

I. Introduction [ 1 ] W.A.T. is charged with having sexually assaulted his wife, A.M.T., between September 1, 2006 and October 31, 2008. Pursuant to s. 278 of the Criminal Code , a spouse may be charged with sexual assault regardless of whether or not the spouses were living together when the offence is alleged to have occurred. II. The Evidence [ 2 ] The complainant and the accused were married in September 2005 shortly after he returned to Calgary from a two-year Church mission in Korea. The complainant testified that their sexual relations were consensual until September 2006.

Sometime during that month, while they were living in Calgary, they were in bed naked. She had her back to him and was looking at the wall. He came up behind her trying to touch her breasts and to initiate sexual activity. She acknowledged in cross-examination that touching her breasts was a way he quite often instigated sexual intimacy with her. She told him “No, I don’t want to do this” or “No, I can’t do this” or words to that effect. He put his penis between her legs and used his hand to push his penis into her vagina. He continued to thrust until he had an orgasm then rolled over away from her.

She was surprised that this was happening. She proceeded to take a bath; her vagina hurt when she tried to enter the water. [ 3 ] She recalled on another occasion it was dark; they were in bed naked. He came up behind her. She expressed “I don’t want to do this, let’s not do this”, however, he had sexual intercourse with her while she cried and he heard her crying. [ 4 ] They lived in Edmonton from April 2007 to April 2008. She recalled one occasion during the daytime when again she told him “No, I don’t want to have sex with you”. He came up behind her and pushed his penis into her vagina.

She was looking out the window and crying while he had sexual intercourse with her and thought “this is not what’s supposed to happen”. [ 5 ] The complainant described another incident when they were in bed naked. She was lying on her back and he was on top of her. She expressed that she did not want to have sex with him but could not recall her exact words. He proceeded to have sexual intercourse with her. She pulled a pillow over her head so she did not have to look at him.

She recalled more than once pulling a pillow over her face so she did not have to look at him and that one of these incidents occurred while they were living in Edmonton. [ 6 ] She stated that all of these times she was describing she held still so he would know she was not participating or enjoying the sexual activity in any way. [ 7 ] The complainant stated that there were times close to September 2006 when after she had said “No” and he had come up behind her, he would nonchalantly say the next morning, “I’m sorry I raped you last night.” She did not know how to respond to this.

She recalled on a few occasions during the time frame of the indictment when she had been sleeping in her underwear. She would feel wet all over her and it would be semen that had gotten on to her while she was sleeping. [ 8 ] The complainant testified that these incidents of non-consensual sexual intercourse continued for more than a year, although she had no specific memory of how many times nor the dates of the incidents stating “... it was an up and down, frequent, expected kind of thing”. There were months it happened five times and months it happened once or not at all.

She recalled the last incident of non- consensual sexual intercourse occurring in March or April of 2008 while they were still living in Edmonton. [ 9 ] The complainant also described incidents of sexual contact when she said “I don’t want to do this but just go ahead, like just do what you got to do so we can go to sleep.” She testified that W.A.T. referred to this as “pity sex”. She acknowledged there were also occasions during the time frame of the indictment when they would have consensual sexual intercourse which on some occasions she initiated.

[ 10 ] The complainant testified that the word “rape” was first used by W.A.T. in September 2006 when they were talking about their relationship. It was suggested to her in cross-examination that she told W.A.T. in the car on the way home from a discussion at her parents’ home about her parents’ sexual issues that she felt their relationship was like rape. She recalled the conversation. She was “fairly positive” she hadn’t used the word “rape” but had told W.A.T. she felt like she was being used, like he didn’t care about her.

She also testified that when their first child was a year old, the accused said to him “... you’re only here because I raped your mom.” She described W.A.T. as being proud of this. [ 11 ] The complainant recalled an occasion when they were attempting to determine how far along she was in her pregnancy and W.A.T. consulted the journal he kept. He had drawn calendars of a few months in the journal and said “... you were ovulating in this - this week, and I raped you on that day. It says right here.” He said “[t]hat day I raped you and then you laid in bed. You went to sleep.

That’s the day you got pregnant.” She noticed that he had written “rape” on the calendar in his journal on days he apparently had raped her, “good sex” on days the sex was consensual, and “pity sex” on days she said okay even though she did not want to have sex. She recalled seeing the word “rape” in his journal four or five times in one month.

After they moved back to Calgary from Edmonton in early May, 2008, he told her he had burned the journal. [ 12 ] The complainant acknowledged that before the spring of 2008 she did not scream or yell at or push W.A.T. away from the bed when he had non-consensual sexual intercourse with her. However, after they returned to Calgary in late April 2008 until she left W.A.T. in February 2009, when she did not want to have sex with him she would communicate this aggressively by screaming, kicking and swearing at him. She would physically shake when he came up behind her and would start yelling and pushing him away.

It made her sick and her body felt like it was on autopilot. He reacted by calling her “frigid” and a “useless bitch” but would not try to have sex with her. Sometimes he would leave and when he returned later, she would consent to having sex with him. She recalled that the last time they had consensual sex was in late December 2008 or early January 2009. [ 13 ] She testified that other aspects of their marital relationship worsened during this period and they fought a lot. They communicated by email on a couple of occasions as they could not have a conversation without a fight.

She acknowledged sending W.A.T. an email on March 21, 2008 in which she stated she did not want a divorce, “... I want to love you. I want to raise our children together... I know that this marriage can work and that we can both be happy with it.” Her email made no specific mention of their sexual issues. She wrote that they were not happy because of her “bad (no) relationship with my Heavenly Father right now”; that she did not feel they respected each other; that he thought in many ways she was “useless”; that she did not respect how he acted in many situations and some of the choices that he made.

Her email went on to state: [...], you need to know that I really love you. I know it must be hard for you to see it. Sometimes it is hard for me to see it. I get so wrapped up in what I think isn’t right in our relationship, I forget what is good about it .... I love that you are concerned for me. That you do everything in your power to make sure that I am comfortable and happy.... It’s comforting to know that you are always loving and supporting me. I really am sorry that I haven’t given you the same comfort ..... There is no question in my mind that I am the one who has been failing lately....

I am going to try and be better for you and for [child’s name] and for me. For me, because I want you. I want to love and live with you and be happy... I love you [...]. [ 14 ] In re-examination, the complainant stated that they would often fight and their talks usually centered on sexual problems, sexual assault and her not wanting sex as much as he did. This time she wanted to focus in her email on different things to see if that would cause a change in their relationship.

She referred to the Heavenly Father as she would pray that she would have a sex drive comparable to her husband’s so they would not have these problems anymore. In regards to her reference to mutual respect and W.A.T. calling her “useless”, she stated that he would have known this was a reference to what he would say to her about their sexual relations. [ 15 ] In February 2009 the complainant moved into her parents’ home and also arranged for she and W.A.T. to meet their bishop. She also spoke to Mr. Wallace Dudley, the stake president of the Church, and she and the accused met with a counselor whom the bishop

had arranged for them to see at Latter Day Saints Family Services, Ms. Deanna Crowfoot. [ 16 ] The complainant testified that at their meeting with Ms. Crowfoot, W.A.T. said they had sexual issues and that she did not want to have sex with him. When Ms. Crowfoot asked why, he responded that it was because he had raped her. [ 17 ] She decided to divorce W.A.T. in March 2009. She stated that she complained to the police that same month as she felt like her children were in danger and she needed to do something to protect them.

She also needed to let her husband know she was not going to cover for him or pretend everything was okay. [ 18 ] She recalled in cross-examination having spoken to W.A.T. on the morning of June 4, 2009 before his arrest that day about why she had gone to the police. She acknowledged saying to him “What was I supposed to do? You’re powerful. Your father is a lawyer. You have money.

I need to protect the kids.” When it was put to her that she told W.A.T. she had complained to the police because she did not want him to get custody of the kids, she responded that she was scared for her kids and “custody has something to do with that”. She was scared for him if he had full custody.

She was scared for him and the kids if he had unsupervised visits “... and that was a big impact on me going to the police”. [ 19 ] She stated in re-examination that one of the reasons she complained to police was that she was scared for the safety of the children if he had unsupervised visits as he had made comments about the kids in a sexual way that scared her considering his actions toward her.

However, in re-cross-examination she acknowledged that from the time she left the home with the children in early February 2009 to June 4, 2009 the accused was not restricted to supervised visits and he saw the children numerous times. [ 20 ] Ms. Crowfoot testified that she met the complainant and W.A.T. for marital counseling on February 10, 2009. W.A.T. was the person mainly speaking; he said he had been inappropriate in the marriage, had raped his wife and that their first child had been conceived through a rape. The complainant just sat there saying nothing and let him hold her hand. [ 21 ] Ms.

Crowfoot stated in cross-examination that her original notes of this session were destroyed after she transcribed them onto her computer within a day of the meeting. The original notes were destroyed for security reasons, so that all information regarding counseling sessions held in the office was kept only on computer, access to which required a private access number. She acknowledged that the transcribed notes were a

summary of what was discussed at the counseling session. While initially denying the suggestion that W.A.T. was “very nonchalant and casual” when talking to her about this rape, she adopted her testimony to that effect from the preliminary inquiry when it was put to her in cross-examination. [ 22 ] Mr. Wallace Dudley testified that as stake president of the Church of Latter Day Saints, he has the power to discipline members of the Church and to make decisions with respect to access of members to the Church and Church functions.

He asked W.A.T. and the complainant to come to his office in February 2009 shortly after meeting with the complainant and her mother, they having brought to his attention concerns about the accused’s behaviour. His initial purpose in meeting the couple was to resolve those concerns and to determine whether W.A.T.’s behaviour offended the rules of the Church governing membership. At the meeting, he referred to information he had been given by Ms. Crowfoot.

W.A.T. agreed that he had been pressuring the complainant to have more sexual relations than she wished to have and that he had on occasion pursued sexual relations with her when he knew she did not wish this to occur. He recalled W.A.T. agreeing that on occasion she may have been asleep when he pursued sexual relations and that on occasion he pressed the issue of having sex beyond what he felt was right or appropriate. [ 23 ] Mr. Dudley stated that W.A.T. used the word “rape” loosely to describe two occasions, one fairly recently, and he thought W.A.T. used the word “rape” more generally as well.

W.A.T. used “rape” in their second meeting in referring to times when he had to work hard to have sexual relations with her, when it did not feel consensual to him. [ 24 ] Mr. Dudley stated in cross-examination that he believed W.A.T.’s intent in using the word “rape” was that he tried hard to have sexual relations often. [ 25 ] Mr. Bryan Leavitt, a Latter Day Saints Family Services counselor to whom W.A.T. was referred by Ms. Crowfoot, testified that he had meetings with W.A.T., two of them on March 25 th and May 27, 2009. W.A.T. indicated to him at the outset that he did not want to be there. Mr.

Leavitt questioned him about his relationship with his wife and other matters. W.A.T. told him it was time to be

completely open regarding his inappropriate activity including the rape of his wife. [ 26 ] Mr. Leavitt testified that in his notes of their May 27 th meeting, he put the word “rape” in quotes as W.A.T. was using the word freely and he wasn’t sure W.A.T. really understood what he was referring to, what it really implied. W.A.T. told him he wanted to have a sexual relationship with his wife and she said “No”, that he coaxed and cajoled and eventually she gave in and they had sexual activity. He denied forcing her legs apart. [ 27 ] Mr.

Leavitt stated in cross-examination that the more W.A.T. discussed what happened, the less he was convinced W.A.T. was talking about rape in the classic sense. He stated in re-examination that W.A.T. was in that regard referring to one occasion he was worried about. [ 28 ] W.A.T. testified in his defence. He is 27 years of age, was a university student for part of the time period referred to in the indictment and also ran a small business. [ 29 ] W.A.T. testified that in September of 2006 he and the complainant had dinner at the home of her mother and stepfather.

The complainant’s mother talked openly about feeling forced into having sexual intercourse with the complainant’s father. W.A.T. testified that during the drive home, the complainant said “You know, what happened to my mother, you know, basically I think that’s what you’re doing to me. I am receiving pressure to have sex. I am receiving – like you are wanting it. You are pushing it.” She paused then said “That’s rape.” He testified that he was completely surprised; the word “rape” had never been in his vocabulary.

She then described it as “rape sex” and said that she thought he was just like her biological father. He responded that he was nothing like her father and that he did not agree with what she was saying. [ 30 ] He testified that he and the complainant engaged in what he described as three types of sex during the time frame of the indictment: “good sex”, a positive experience where both very much wanted the sexual activity. He could count on one hand the number of times they had “good sex” during the time frame of the indictment.

Next he referred to “pity sex” to describe occasions he wanted sex and she did not but would say “all right or okay” verbally or non-verbally. There were also times when she approached him sexually and although he was exhausted he consented and they had sex. The “pity sex” occurred far more times when he was the one asking for it.

He stated that the complainant has a terribly guilty conscience and would express that she felt like a bad wife, not giving her husband what he needed and would say “Okay let’s go ahead” and they would have sex. [ 31 ] He described the third type of sex they engaged in as “rape sex” based on A.M.T.’s definition as occasions when she didn’t want sex at first. He would then work really hard, buy her flowers or a little surprise, run her bath, light candles and ask her again and she would consent.

He knew she had changed her mind as she either said okay or it was mostly non-verbal body language in that she made herself available to his advances. Sometimes it took a day or a week to get to the point where she would agree to have sex. It was “pity sex” with “a whole lot of extra work”. [ 32 ] W.A.T. also referred to occasions when the complainant did not want to have sex and communicated this verbally or non- verbally and they did not have sex. She used body language a lot; physically moving away, mumbling and groaning, putting a pillow between them.

He confirmed the complainant’s testimony that after they returned to Calgary from Edmonton in the spring of 2008, she would scream or kick and they did not have sex, it being clear to him that she did not want it. [ 33 ] W.A.T. acknowledged having written “rape” in his private journal as alleged by the complainant. He described the journal as a way he could express himself and in which he wrote things that were very personal to him. He stated that just after their daughter was born in the fall of 2008 the complainant found the diary and was flipping through it.

He acknowledged he had drawn a calendar in the journal and was tracking her ovulation as he wanted to have kids. He acknowledged having recorded on various dates in the journal “good sex”, “pity sex” and “rape” as he understood the terms. [ 34 ] According to W.A.T., the complainant always consented to their sexual activity either verbally or non-verbally to the best of his belief. He stated that there were occasions when he would be fondling her breasts or touching her body or verbally indicating he wanted to have sex; she didn’t say anything and just laid there.

He said that physiologically while lying on her side her legs had to open up; if she didn’t move them sexual intercourse was not going to happen. After everything he could do to try and love her, she would make her vagina available to him then they would have sex. For him this was consensual sexual intercourse; although she didn’t say anything, she physically made herself available. He denied prying or forcing her legs open. He denied that they had sex when she had a pillow over her face.

[ 35 ] W.A.T. acknowledged that the complainant arranged a meeting with their bishop in early February 2009 and the bishop in turn arranged for them to see Ms. Crowfoot. W.A.T. recalled that he did a lot of the talking at the beginning of their meeting while holding his wife’s hand. He stated that at one point the complainant said “he’s been raping me since the first day we got married” at which point he released her hand and sat back, shocked, not knowing what to say. He recalled that the complainant advised Ms. Crowfoot that he had told their son he was the product of rape.

He felt like he was being bullied in the meeting. Ms. Crowfoot told him the breakdown of the marriage was 100% his fault. She spoke about men who don’t work this out with their wives losing their lives, their family and their kids. He stated that her reference to his kids struck a chord with him and he agreed that he had been raping his wife. He was agreeing to what he understood it meant, namely “rape sex” where she didn’t want sex, he would work at it then she would consent. He acknowledged in cross-examination that he knew his wife and Ms. Crowfoot were not talking about that.

He felt that if he agreed to what they were saying it would make the complainant happy and she would come home. [ 36 ] The complainant also informed him that Mr. Dudley wanted to see them. He knew that Mr. Dudley as stake president was the head of the Church disciplinary Council and had the power to excommunicate members. He was aware that they were meeting to discuss their marital and sexual issues. [ 37 ] He was shocked when Mr. Dudley asked him at their first meeting “ ... what should happen to a man in the church who holds the priesthood who is raping his wife?” Mr.

Dudley told him a disciplinary Council would be held and that in his opinion he should be excommunicated. He read a number of allegations from a sheet of paper and told W.A.T. he had to be honest and that lying was not a good idea. W.A.T. testified that he agreed to the list of allegations. He stated he did so as his membership in the Church was in question, something that mattered the most to him and he felt that if he did not agree he would be kicked out of the Church. He felt pressured to agree to everything Mr. Dudley said, that it was either give in or fight and if he fought he would lose his membership.

He did what he was conditioned to do over the entire marriage, he gave in “... and hopefully it turns out good.” [ 38 ] W.A.T. recalled discussing with Mr. Dudley at a subsequent meeting two incidents of sexual intercourse that he felt “terribly guilty about”. It had been months since he and his wife had last had sex. He told her “I need a wife. I am working really hard. I need a wife. And I really need some intimacy. I could really use sex.” She consented on the spot and they had sexual intercourse, but he vividly remembered looking in her eyes and knowing she didn’t really want to be there.

He stated that he felt terribly guilty about that. The second incident was basically the same but halfway through intercourse he pulled out and left. He stated that both incidents weighed in his conscience and were the only incidents he discussed with Mr. Dudley. [ 39 ] W.A.T. recalled meeting with Mr. Bryan Leavitt, however, he did not want to be there; Mr. Leavitt told him he reported to Mr. Dudley. Mr. Leavitt asked him about rape but he could not recall what he said in response.

He knew his membership in the Church was at stake so he told him what they wanted to hear. [ 40 ] W.A.T. testified that he and the complainant shared the same bed on two occasions after the complainant left the home in February 2009. On the first occasion, she decided to stay the night rather than waken the kids who were sleeping at his home. He offered to sleep on the couch and she said he could sleep in the bed with her. He testified they slept in “spooning” positions in their underwear but that no sexual activity occurred. She left abruptly the next morning with the kids.

He recalled a similar incident occurring on one other occasion. [ 41 ] W.A.T. confirmed that he had access to the children from the time they separated in February 2009 to his arrest on June 4, 2009. At that point, the terms of his release prevented him from having contact with the complainant and the children, however, his release terms were amended in October 2009 to allow him supervised visits with the children. III. The elements of sexual assault [ 42 ] Whether or not in a spousal context, each of the elements of the offence of sexual assault that the Crown must prove beyond a reasonable doubt are the same.

Here there is no issue as to the elements of identity, date, and place.

[43] The Supreme Court of Canada in R v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 broke down the offence ofsexual assault into its constituent elements. [44] The actus reus of the offence of sexual assault is established by proof beyond reasonable doubt of three elements: touching,the sexual nature of the touching, and the absence of consent.

The physical contact between the accused and the complainant during thetime frame of the indictment and the fact that it was sexual in nature have been established beyond a reasonable doubt on the testimonyof the accused and the complainant. [45] It remains for the Crown to prove beyond a reasonable doubt as part of the actus reus that the complainant did not consent tothe sexual activity. [46] The mens rea of the offence of sexual assault is established by proof beyond reasonable doubt of two elements: that theaccused intended to touch the complainant and knew of, or was reckless of or wilfully blind to her lack of consent.

That he intended totouch the complainant, i.e. that the touching was deliberate and not accidental, inadvertent or involuntary has been established beyond areasonable doubt on the testimony of the accused and the complainant.

It remains in this case for the Crown to prove beyond areasonable doubt as part of the mens rea that W.A.T. knew of, or was reckless of or wilfully blind to the complainant’s lack of consent.An accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent, which amounts to adenial of mens rea. [47] Every person charged with a criminal offence is presumed to be innocent, unless and until the Crown has proved that person’sguilt beyond a reasonable doubt. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy orprejudice.

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. Itis not enough to believe that an accused is probably or likely guilty. In those circumstances the accused must be acquitted as the Crownwould have failed to prove his or her guilt beyond a reasonable doubt. It is nearly impossible to prove anything to an absolute certainty.The Crown is not required to do so. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof ofprobable guilt.

If at the end of the case, after considering all of the evidence, the trier of fact is sure that the accused committed theoffence charged, the accused should be found guilty since the trier of fact is satisfied of the accused’s guilt beyond a reasonable doubt. Ifat the end of the case, based on all of the evidence or the lack of evidence, the trier of fact is not sure that the accused committed theoffence, an acquittal should be entered. Actus reus - the absence of consent [48] S. 273.1 of the Criminal Code defines consent as follows: Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of s. 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) ... (b) ... (c) ... (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity,

expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [ 49 ] As Major J. noted in Ewanchuk at para. 26 , the absence of consent is subjective and is solely determined by reference to the complainant’s subjective internal state of mind toward the touching at the time it occurred. He explained at paras. 29-30: 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. 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. [ 50 ] Major J. emphasized at para. 31: “ ... the complainant either consented or not. There is no third option ....

There is no defence of implied consent to sexual assault in Canadian law.” [ 51 ] Nor is the trier of fact entitled to engage in propensity reasoning and to simply reason that because the complainant consented to sexual activity with the accused at times before the incidents complained of she is more likely to have consented to the sexual activity which is the subject of the indictment. [ 52 ] Defence counsel submitted that the Crown has failed to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity.

He referred to the complainant’s vague recollection of the events, her inability to recall the date and place of many of the incidents alleged or how many times they occurred over the time frame of the indictment. He noted that even within the time frame of the indictment, the complainant described several occasions when she and W.A.T. engaged in “pity sex”, a form of consensual sex, on some occasions at her instigation.

Given her lack of specific memory of the occasions in question when she says non-consensual sex occurred as distinguished from these other occasions of consensual sexual activity, the Court should have concerns about the reliability and the credibility of her account that on some occasions she did not consent. He noted that she was attempting to recall events occurring quite some time in the past as it was a full year after she alleges that the incidents of non-consensual sexual intercourse ended before she complained to the police.

[ 53 ] Defence counsel also submitted that by virtue of giving an account of the incidents to her parents then repeating it to counselors, police authorities and at preliminary inquiry she has developed an honest belief that the events occurred which, as in the case of eyewitness evidence, is not necessarily reliable and that reasonable doubt should exist in that regard. [ 54 ] In reply, Crown counsel noted that the complainant had an accurate recollection of the first incident of non-consensual sexual intercourse, that it occurred in the bedroom, the month and year it occurred and what she was thinking at the time.

While not specifically recalling when the subsequent incidents occurred, she was able to give some details about the incidents, for example, the time of day, what she said, or how she reacted. Crown counsel submitted that as a matter of common sense, someone who is regularly assaulted over a longer period of time will not recall exact dates and times.

However, A.M.T. clearly differentiated between times she consented and times she did not when she said ‘no’ and W.A.T. had sexual intercourse with her anyway. [ 55 ] Crown counsel pointed out that W.A.T.’s testimony corroborated the complainant’s testimony in many respects; that he was pressuring her to have sex frequently, that he kept a journal in which he recorded “good sex”, “pity sex” and “rape”, that it was in the spring of 2008 that she started reacting aggressively to his sexual advances; that he admitted using the word “rape” in meetings with Ms. Crowfoot and Mr.

Dudley. [ 56 ] W.A.T. testified that in his belief their sexual relations were consensual based on her body language that he became very familiar with over the time of their marriage; on most occasions of consensual sex she made herself available physically and did not say anything. He believed when she made herself available physically that she was consenting. However, what W.A.T. thought the complainant was thinking is irrelevant on the issue of whether the complainant’s state of mind was actually one of consent.

The absence of consent is subjective and is solely determined by reference to the complainant’s subjective internal state of mind toward the touching at the time it occurred.

I find that W.A.T.’s testimony about the conduct of the complainant before and during sexual intercourse does not raise a reasonable doubt as to whether in her own mind she was consenting. [ 57 ] Turning to the complainant’s testimony, while as pointed out by defence counsel, the complainant could not recall with specificity the number of incidents of non-consensual sex that occurred in the period of the indictment, this is not in my view such as to raise reasonable doubt regarding the complainant’s internal state of mind in relation to consent, the incidents she referred to having occurred in the continuum of the marital relationship intermingled on her testimony with occasions of consensual sex, much of which was “pity sex” in the sense of her agreeing to having sex even though she did not want it.

The fact that on an earlier or later occasion the complainant, in the context of the marital relationship, consented to sexual intercourse initially or changed her mind and agreed to have sex does not mean that on the occasions she described she was not consenting to having sex.

The complainant testified that she experienced feelings of guilt and acceded to having sexual intercourse on some occasions in order to make the marriage work. [ 58 ] I do not find the complainant’s testimony that she did not want to have sex with W.A.T. on the occasions she mentioned was undermined by her email of March 2008 to W.A.T. in which she expressed her love for him and did not explicitly refer to their sexual issues. W.A.T. himself testified that she expressed a great deal of guilt about failing to fulfil her spousal role.

She testified that at the time she wanted the marriage to continue and the family to remain together. [ 59 ] I find that the complainant’s acknowledgment that shortly after their separation she slept in the same bed with the accused while both of them were dressed in conservative underwear without sexual activity occurring does not undermine her testimony as to her internal state of mind during the earlier time frame of the indictment.

By the spring of 2008 she was communicating her lack of consent in aggressive verbal and/or physical ways and W.A.T. never attempted to have sex with her against her will after that. She had no reason to believe otherwise when they slept in the same bed later on. [ 60 ] I do not find based on the number of times the complainant repeated the allegations that she came to honestly, but mistakenly, believe in her own lack of consent.

She recalled in some detail her emotions while the incidents of non-consensual intercourse were occurring. [ 61 ] Finally, while she disclosed to W.A.T. on the day of his arrest and at trial that part of her motivation in complaining to police was to secure custody of the children, there is no suggestion in the evidence that this was her motivation when she first brought matters to the attention of her mother, her counselor and the Church in February.

If custody and limiting W.A.T. to seeing their children on a supervised access basis was her primary goal in complaining to the police, one would have expected that she would have attempted to suspend or restrict his access while they were separated and before he was arrested, and there is nothing in the evidence to suggest that she did so.

[ 62 ] Having considered the totality of the evidence, I find that it establishes beyond a reasonable doubt the actus reus of the offence of sexual assault and that the complainant’s internal state of mind was one of lack of consent on the occasions within the time frame of the indictment that she described in her testimony.

Mens rea and honest but mistaken belief in consent [ 63 ] The Crown must next prove beyond reasonable doubt the mens rea of the offence of sexual assault, namely, that W.A.T. knew that the complainant was not consenting to the sexual activity that is the subject of the indictment. [ 64 ] I find on the evidence that none of the factors in s. 265(3) apply to the circumstances here. Crown counsel conceded this to be the case. [ 65 ] I have already referred to s. 273.1(2). S. 265(4) states: Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [ 66 ] S. 273.2 states: Where belief in consent is not a defence 273.2 It is not a defence to a charge under sections 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [ 67 ] Consent in this context is considered from the perspective of the accused. The Crown must prove beyond a reasonable doubt that W.A.T. knew, was reckless, or was wilfully blind to the fact that the complainant was not consenting to the sexual activity. A person is reckless when he or she knows that certain conduct may result in criminal harm but goes ahead and acts anyway. A person is wilfully blind when deliberately deciding not to inquire about something because he or she does not want to know the truth, or prefers to remain ignorant.

[68] Continuing sexual contact after someone has said ‘no’ is, at a minimum, reckless conduct which fulfills the mens rearequirements of sexual assault. Major J. in Ewanchuk observed at para. 45, quoting from R v.

Park, (SCC), [1995] 2S.C.R. 836, at para. 39: ... the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying “no”, but is also satisfied when it is shown that the accused knew the complainant was essentially not saying “yes”. [69] Major J. continued at para. 46: In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question.

A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence. [italics in original] [70] What matters is whether W.A.T. believed the complainant said “yes” through her words and/or actions. The question is notwhether the complainant failed to communicate her lack of consent. The question is whether W.A.T. honestly believed that she hadcommunicated her consent. [71] As noted in R. v.

M.(M.L.) (1994), (NS SC), 78 C.C.C. (3d) 318 (S.C.C.), cited in Ewanchuk at para. 50,it would be an error to hold that the complainant is required to offer some minimal word or gesture of objection such that a lack ofresistance could be equated with consent. To be morally innocent W.A.T. must show that he believed the complainant actuallycommunicated her consent to engage in sexual activity. He cannot speculate as to what is going on in her mind.

Once the complainant hasexpressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind beforeproceeding with further intimacies. He cannot rely on mere lapse of time or the complainant’s silence or equivocal conduct to indicatethere has been a change of heart and that consent exists: Ewanchuk, at para. 52. [72] The determination of whether reasonable steps have been taken to ascertain whether a complainant is consenting to the sexualactivity in question has both subjective and objective elements.

The accused is obliged to take reasonable steps in the circumstancesknown to him to ascertain the complainant’s consent. More than a bare assertion as to honest but mistaken belief in consent is necessaryeven where a prior sexual relationship existed between the accused and the complainant: R v. B.(A.J.) (2007), 2007 MBCA 95 ,225 C.C.C. (3d) 171 (Man.C.A.), at para. 52.

Where the accused is relying on his prior sexual relationship with the complainant inadvancing the mistaken belief defence, he must be able to articulate how the prior sexual history mistakenly led him to believe that thecomplainant was consenting at the time without engaging in the propensity reasoning I earlier referred to. The accused cannot transformhis own acts into reflections of consent: R v. Cornejo (2003), (ON CA), 181 C.C.C. (3d) 206 (Ont.C.A.), leave toappeal to S.C.C. refused 188 C.C.C. (3d) vi, at para. 32. [73] The accused’s belief in consent must be honest but it does not have to be reasonable.

However, the Court must considerwhether there were reasonable grounds for the accused’s belief. The presence or absence of reasonable grounds may help the trier of factdecide whether the accused’s belief was honest. [74] In determining whether the defence of honest but mistaken belief in consent has an air of reality, the trial judge must considerthe totality of the evidence and is required to assume that the evidence relied upon by the accused is true: R v. Cinnous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53. At this threshold stage, the trial judge must determine if the evidence put forward is such that, if

believed, a reasonable jury properly instructed could have acquitted: R v. Osolin, (SCC), [1993] 4 S.C.R. 595, at p. 682. [75] W.A.T. described actions of the complainant in the form of body language and making her body physically available to himfor sexual intercourse which he stated he took as clear signals that she was consenting. W.A.T. testified that he did not pursue sexualactivity when she said “no”. There were, however, occasions when she would change her mind and indicate verbally or more oftenthrough her body language that she was consenting which engendered a belief in him that she was consenting.

On the issue of reasonablesteps, he referred to asking her questions such as “Are you okay with this?” “Can we have sex?” [76] The complainant stated that on each occasion when she said “no” to W.A.T.’s sexual advances, she would stay still andwould not participate in the sexual activity that followed in relation to incidents in which she stated in her direct examination that sexualintercourse occurred without her consent.

There is also evidence that W.A.T. described his sexual activity with the complainant in hisjournal, to two counselors and to a Church official as “rape” which would weigh against his assertion that he honestly believed that shewas consenting to the sexual activity.

However, it is not my function at the threshold stage to weigh the evidence, simply to determinewhether the air of reality test has been met. [77] I find that there is evidence that the accused believed, acting honestly and without wilful blindness or recklessness, that thecomplainant was communicating her consent, evidence upon which, if believed, a reasonable jury properly instructed could acquit theaccused.

Crown counsel conceded that the defence was within the “outer bounds” of the air of reality test. [78] Having determined that there is an air of reality to the defence of honest but mistaken belief in consent, there is no burden onW.A.T. to prove this defence.

It is for the Crown to disprove honest but mistaken belief in consent beyond a reasonable doubt just as itmust prove beyond a reasonable doubt that W.A.T. knew that the complainant was not consenting to the sexual activity or was reckless orwilfully blind in that regard. [79] If I believe W.A.T’s testimony that he honestly believed that the complainant by her words or conduct communicated to himher consent to having sexual intercourse, then I must find him not guilty.

Even if I do not believe W.A.T.’s testimony that he honestlybelieved that the complainant communicated to him her consent to having sexual intercourse, if his testimony leaves me with areasonable doubt as to his honest but mistaken belief in her consent, then I must find him not guilty.

Even if W.A.T.’s testimony does notleave me with a reasonable doubt as to his honest but mistaken belief in her consent, then I may convict him of the offence charged onlyif the rest of the evidence that I do accept proves his lack of honest belief that she communicated her consent to him beyond a reasonabledoubt. [80] Defence counsel argued that W.A.T.’s honest but mistaken belief in the complainant’s consent arose from their inability tocommunicate effectively during their marriage. Both were young and inexperienced in sexual relationships.

The complainant wasreluctant to talk about their problems and the situation continued to deteriorate to the point where she communicated her lack of consentthrough yelling and kicking. Defence counsel emphasized that when this occurred there were no more incidents of non-consensual sexualintercourse. At that point, it was made very clear to W.A.T. that his wife was not communicating consent. However, they continued tohave what she acknowledged to be consensual sex even after this point in their marriage.

W.A.T. testified as to the steps he took in thecontext of “rape sex” to obtain her consent which were reasonable in the context of their ongoing marital relationship and the pattern oftheir sexual intimacy. He urged the Court to find that on the totality of the evidence there is a reasonable doubt as to whether the accusedhonestly but mistakenly believed in the complainant’s consent. [81] Defence counsel maintained that the entries in the journal kept by W.A.T. simply recorded his own

interpretation of “rapesex” and were not referring to non-consensual sexual intercourse. He also submitted that admissions made by W.A.T. to Ms. Crowfoot,Mr. Dudley and Mr. Leavitt that he raped his wife must be considered in their context. W.A.T. was under tremendous pressure to saywhat they wanted to hear, the complainant having just left him with the children. W.A.T. thought, naively, that if he admitted theaccusations made by Mr. Dudley who had made it clear that he would use his power to excommunicate him, he might be able to retainmembership in the Church and his wife would come home.

He was aware that both Ms. Crowfoot and Mr. Leavitt were reporting back toMr. Dudley. [82] Defence counsel pointed out that Mr. Leavitt intuitively suspected that W.A.T. was not in fact using the word “rape” in itsclassic sense but in the sense of continuing to pressure the complainant to have sex.

[ 83 ] Defence counsel also pointed out that W.A.T. expressed shock when the complainant compared him to her father; he denied he was like him. He was also shocked that his wife told Ms. Crowfoot that he had raped her from “day one” in their marriage when he knew that this was not the case. Defence counsel referred to the complainant’s testimony that their sexual relations were frequent and consensual until September 2006, a full year after their marriage. [ 84 ] Finally, defence counsel pointed out that not one of the counselors seen by W.A.T. nor Mr. Dudley took verbatim notes of what was said to them and by whom. Ms. Crowfoot destroyed her original notes and her

summary of a 50 minute discussion was only a few lines long. He noted that while Mr. Dudley referred to W.A.T. having used the word “rape” to describe an incident in December 2008, the complainant’s testimony was that the non-consensual sexual intercourse did not re-occur after they returned to Calgary in the spring of 2008. Mr.

Dudley also referred to W.A.T. using the word “rape” to describe when he tried hard to have sexual relations often. [ 85 ] Crown counsel in response submitted that the complainant’s actions in aggressively expressing her lack of consent in the spring of 2008 were consistent with those of someone who “couldn’t take it anymore”, not someone who had a history of consensual sexual intercourse with her spouse. W.A.T. acknowledged he used the word “rape” to describe his actions to Ms. Crowfoot, Mr. Dudley and Mr. Leavitt.

Crown counsel urged the Court to find that W.A.T.’s testimony that “ rape” meant to him something other than non- consensual sex was not credible. Why would he make the admission to Mr. Dudley of “rape” to preserve his membership in the Church ? According W.A.T.’s own testimony, at the outset of their first meeting, Mr. Dudley asked him what should happen to a man in the church who is holding the priesthood and raping his wife and communicating to W.A.T. his opinion that he should be excommunicated. Why would he admit to having raped the complainant to Ms.

Crowfoot knowing as he acknowledged in direct examination that what he was describing as consensual sex with a lot of effort, was not what the complainant and Ms. Crowfoot were talking about? Why would a university-educated person in his 20's use the word “rape” in his journal to describe something that was not rape? [ 86 ] I note that W.A.T. stated in cross examination that A.M.T. was the first woman he had sex with, that he was very innocent. He stated that he had never used the word “rape” before and that it always had a “really ugly connotation”.

Yet he used the same word to describe something that was in the end consensual on his definition. In that regard, it is unclear from his testimony that he drew any real distinction in his mind between “pity sex” and “rape sex” as he defined both as involving sex when she didn’t want it but consented; in the case of “rape sex” it simply took more effort on his part and longer to obtain her consent: Rape sex, by the definition I understood, was there was an initial – there was an initial, whether it was verbal “I’m not in the mood,” just like pity sex or some non-verbal way of I don’t want to have sex .

And then there was this big long period that I had to do a lot to get to the point where she would say “yes”, where she would consent. [emphasis added] [ 87 ] Accordingly, I do not accept W.A.T.’s testimony that his reference to “rape” in his journal was a reference to consensual sex. While the context of the admissions he made of rape to Mr. Dudley and Ms. Crowfoot which I will next review were situations in which he was under some pressure, there is no suggestion that the journal entries were recorded in circumstances of pressure or intimidation.

I find that W.A.T.’s own journal entries undermine his trial testimony that he did not know that the complainant was not consenting to sexual intercourse. [ 88 ] Mr. Dudley testified that W.A.T. agreed that he had on occasion pursued sexual relations when he knew that the complainant did not wish for that to occur, that he agreed that on occasion she may have been asleep when he pursued sexual relations, and that on occasion he pressed the issue of having sex beyond what he felt was right or appropriate.

He testified that W.A.T. used the term “rape” loosely to refer to incidents when he had sexual relations with her when she did not wish for him to pursue sexual relations. His notes recorded a concern expressed by the complainant about being pressured for sex by W.A.T. While his notes were only a

summary of their meeting, I do not find that his testimony was seriously undermined by that fact given they were made contemporaneously with their discussions at their second meeting. W.A.T.’s version of the two incidents he stated that he recounted in some detail to Mr. Dudley involved one that was very recent and another before that. In both cases what he was describing was his definition of ‘pity sex” as he was clear in his reference to the complainant having consented on the spot even though he knew she did not want to have sex.

That was not on his own definition “rape sex” where she withheld consent then eventually changed her mind after “lots of work” on his part. I find that what he was being confronted with by Mr. Dudley and he understood was that he had sex with his wife without her consent. He admitted to Mr. Dudley that he had done so.

[ 89 ] I find that by the time W.A.T. met with Mr. Leavitt the second time in May, 2009, he similarly deflected their discussion to “pity sex”, although he initially admitted to Mr. Leavitt in their March 2009 meeting to having raped his wife. [ 90 ] Finally, while the accused testified that what he admitted to Ms. Crowfoot in February, 2009 was his own definition of “rape” that involved consensual sex on the one hand, he also stated that he had to agree that he was raping his wife, particularly when Ms. Crowfoot referred to men like him “that don’t work this out” losing their life, family and children. Yet Ms.

Crowfoot’s testimony was that he did most of the talking and told her he had raped his wife, not that he agreed to something she or the complainant said to him. Ms. Crowfoot stated that she transcribed her handwritten notes onto the computer in

summary form within a day of recording them. While not verbatim, she recorded her notes contemporaneously with the event and it was not suggested that her notes contradicted her assertion that he told her he had raped his wife. [ 91 ] I also note that there was no suggestion in the testimony of Ms. Crowfoot or W.A.T. that he explained to her what he meant by rape even though he knew, according to his direct testimony, that she and his wife were not talking about his definition of “rape”. Despite this knowledge, he nonetheless agreed that he had raped his wife.

I find that W.A.T. was aware at the initial meeting with Ms. Crowfoot that when she and the complainant were speaking of rape they were referring to non-consensual sexual intercourse. [ 92 ] I also find that W.A.T. was aware when he attended the initial meeting with Mr. Dudley that the latter was referring to non- consensual sexual intercourse when he questioned him. It is incongruous that W.A.T. would have assumed anything other than he was being accused of having non-consensual sex with his wife given the clear implications of Mr.

Dudley’s opening comments that persons who raped their wives should be excommunicated from the Church. I find that W.A.T. was aware that by admitting he raped his wife he was admitting that he had non-consensual sex with her. It would be difficult to envisage that Mr. Dudley was contemplating excommunication in a situation of consensual marital sex. [ 93 ] I find that W.A.T. knowingly admitted to both Mr. Dudley and Ms. Crowfoot that he had been having non-consensual sexual intercourse with his wife. [ 94 ] I accept W.A.T.’s testimony that he felt pressure when he was being interviewed by Mr.

Dudley, the stake president of the Church, and also when he met with Ms. Crowfoot and Mr. Leavitt who were both associated with the Church. However, I do not accept that he subjectively felt he was left completely without choices. He was urged to tell the truth by Mr. Dudley. The evidence of Ms. Crowfoot was that he came out with the admission of rape. He acknowledged in cross-examination that telling the truth was an important principle in the Church and that Church authority was important to him.

However, when it was suggested that he had to listen to what the stake president and bishops say, he responded: “You have the choice in our church to listen if you want to. You don’t have to listen and you don’t have to follow.

It’s a choice.” Accordingly, I find that subjectively W.A.T.’s assertion that he was in a box with no choices but to admit the accusations overstated his predicament. [ 95 ] Also undermining the credibility of W.A.T.’s denial at trial that he had non-consensual sexual intercourse with his wife were what I find to be his equivocal responses to Constable Daniels in his videotaped statement to her shortly after his arrest for sexual assault on June 4, 2009.

When asked by her whether he had non-consensual sex with his wife he responded “I don’t think so, I don’t think so” and at another point “ I’m guessing when it was consensual it was rape. And it was consensual pretty much every time.” [ 96 ] Defence counsel stated that W.A.T.’s somewhat unclear responses to Constable Daniels’ questioning should not be taken out of context. By that time, he was attempting to look back almost 2 ½ years after the first alleged incident and at least a year after the complainant had started aggressively demonstrating her lack of consent to him.

However, he acknowledged at trial that when he made the last comment to Constable Daniels, what was going through his mind was that the complainant didn’t communicate with him, so he had to go through and think of every time they had rape sex (on his definition of the word). [ 97 ] While he may have been reflecting back on sexual activity that took place over a number of years, there was no suggestion in his testimony that he was unaware of his jeopardy when he made the statement to Constable Daniels.

If he honestly believed that on the occasions they had sex it was with her consent as he asserted firmly at trial, why the less than firm responses at a time more proximate to the events? I find that his trial testimony is undermined by the somewhat equivocal responses he gave to Constable Daniels closer to the events. [ 98 ] Was W.A.T.’s professed belief in consent based on his own recklessness or wilful blindness? As noted by Crown counsel, the complainant’s silence or ambiguous conduct is no defence. She submits that this at most was what was being communicated to W.A.T.

and as such there can be no honest but mistaken belief in consent. [ 99 ] W.A.T. described touching his wife’s breasts as a frequent precursor in their marital relationship to consensual sexual intercourse. The complainant corroborated his testimony in that regard. He also referred to massaging her back and in the earlier stages of their relationship touching her vagina. There were times she communicated verbally or through her actions that she was not in the mood for sex. He testified that at times she would later say okay after he massaged her, leaving her sexual regions alone.

He would then ask “Can I touch your breasts” or, in his words, she would make them available to him. She would say nothing in response to his questions “Are you okay with this? How are you doing? Does this feel good? Can I proceed?

Like can we have sex?” Most of her communication that it was okay came through her body language in making herself available to him. [ 100 ] In the case of the occasions when he penetrated her vaginally from behind he stated that she would move her legs and position her hips to allow him to do so. [ 101 ] I do not believe W.A.T’s assertions that the complainant was by her conduct positively communicating her consent. Nor does his testimony raise a reasonable doubt that he honestly but mistakenly believed in her consent.

On his own testimony she was silent despite his questioning, “Does this feel good?” “Can I proceed?” He acknowledged in his meetings with Mr. Dudley and Mr. Leavitt that he was pressuring her to have sex. He also knew that she did not want to have sex in the majority of their encounters as he stated that he could count on one hand the number of times they had good sex during the period of the indictment and that she initiated sexual contact very infrequently.

He stated that he had to learn her body because she didn’t talk about what she liked and didn’t like; he had to learn her body language and “learn intimately what her body language meant”. He acknowledged however, that she was silent before and during the intercourse he characterized as “pity sex”. Similarly, he stated that with respect to the “rape sex”, her initial refusal would eventually be followed by consent through her body language .

I refer to my earlier concerns regarding his credibility generally and also his acknowledgment that at one point in the spring of 2008 she started expressing her lack of consent in an aggressive fashion.

I find in the context of their sexual relationship that the aggressive stance she adopted was consistent with a decision on her part that she would no longer permit him to ignore her passive lack of response to his unwanted advances which were preceded by her verbal refusals to have sex. [ 102 ] Looking at her aggressive response another way, if she was reacting aggressively to his sexual advances so as to make it clear to him she was not consenting, this is not what the law requires as it would be obliging her to express to him by her words or conduct the absence of consent.

Any reasonable doubt as to honest but mistaken belief in consent must lie in her having communicated to him by her words or her conduct that she was saying “yes”, not that she wasn’t saying “no”. If an accused acting honestly perceives his sexual partner’s conduct to be ambiguous or unclear, he or she must abstain or obtain clarification on the issue of consent.

As in all cases, within the marital relationship the circumstances surrounding the allegations must be carefully scrutinized to determine whether the words or actions of the spouse could honestly have been misinterpreted as positive communications of consent. The existence of the marital relationship, however, does not entitle a spouse to assume consent unless otherwise advised. I find that W.A.T. has failed to raise a reasonable doubt in my mind that he honestly but mistakenly believed in the complainant’s consent.

I find that his testimony does not raise a reasonable doubt on the issue of whether he knew she was not consenting. [ 103 ] I must go on to consider the rest of the evidence to determine if it proves W.A.T.’s lack of honest belief that she communicated her consent to him beyond a reasonable doubt. [ 104 ] The complainant’s testimony was that on some occasions W.A.T. had sexual intercourse with her from behind while her body was turned away from his and after she had verbally expressed to him that she did not want to have sex.

She was not cross-examined on the physiological improbability of sex occurring without her participation. She stated that W.A.T. would use his hand to guide his penis into her vagina. She did not participate in the sexual activity but simply lay still. She recalled crying on one occasion and that he would have heard her cry.

She recalled an occasion where the next morning he apologized for having raped her. [ 105 ] While I have carefully considered the fact that there were also on her testimony instances of consensual sexual relations between them during the time frame of the indictment, the distinction between those incidents and the non-consensual events were very clear in the complainant’s testimony.

There was no indication in her evidence that she was confusing in her own mind the instances when she expressed her consent to him and those when she did not. [ 106 ] I have also considered the testimony in relation to the admissions of “rape” made by the accused in his journal and to Mr. Dudley and the counselors as corroborative of the complainant’s testimony that W.A.T. engaged in non-consensual sexual relations with

the complainant knowing that she was not consenting. [ 107 ] For the reasons expressed earlier in relation to the actus reus , I am not of the view that the complainant’s evidence as to whether she communicated consent is undermined by the email she sent to W.A.T. in March 2008. I am of the view that despite his violation of her sexual integrity, she was still at that point feeling guilty about failure in her spousal role and was hoping the marriage could somehow succeed and their family kept intact.

Nor am I of the view that her comments to W.A.T. and to the police about wanting custody materially affect her credibility for the reasons earlier given. [ 108 ] I find that neither the evidence of the accused nor the other evidence before me has raised a reasonable doubt in my mind as to honest but mistaken belief in consent on the part of W.A.T. [ 109 ] I find that the incidents of non-consensual sexual intercourse occurred between September 2006 through March, 2008.

The complainant was unable to say how many times the acts occurred but recalled as many as five such occasions in some months and as few as 0 to 1 occasions in others during the time frame of the indictment. I am satisfied that they occurred on at least 10 occasions based on this evidence and also on her testimony that the incidents occurred maybe 10 times in one year. I also find that there were occasions, uncontroverted by W.A.T.’s testimony, that he ejaculated on the underwear the complainant was wearing while she was asleep.

However, the evidence was very sparse on this issue and left me with questions as to how exactly this occurred. The law requires the complainant to establish that the actions of the accused were intentional in the sense of voluntary and not accidental and that he knew that she was not consenting. I am of the view that these elements have not been proved beyond a reasonable doubt not because I do not believe the complainant but because of the sparsity of the evidence on these incidents.

Accordingly my findings as to guilt are limited to those incidents I have referred to where sexual intercourse occurred without the complainant’s consent on at least 10 occasions during the period of the indictment. IV. Conclusion [ 110 ] For these reasons, I find the accused W.A.T. guilty of sexual assault as alleged in the indictment. Heard on the 2 nd , 3 rd , 4 th , 5 th , 9 th and 10 th days of May, 2011. Dated at the City of Calgary, Alberta this 12 th day of May, 2011. M.T. Moreau J.C.Q.B.A. Appearances: Julie Roy for Her Majesty the Queen

J. Paul Brunnen for the Accused W.A.T. _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice M.T. Moreau _______________________________________________________ The following corrections have been made to the text of the judgment: 1. The Restriction on Publication notice was revised to indicate the statutory authority for the restriction. 2.

A typographical error was corrected in the first sentence of paragraph 52, so that it now reads: “Defence counsel submitted that the Crown has failed to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity.” _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice M.T. Moreau _______________________________________________________ The text of this judgment has been corrected to remove a name from the quoted text in paragraph 13.