R. v. Toenders, 2017 BCSC 2519

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Toenders, 2017 BCSC 2519 Date: 20171215 Docket: 169496-2 Registry: Victoria Regina v. Clayton William Toenders Ban on Publication CCC 486.4 Before: The Honourable Mr. Justice Baird Oral Reasons for Judgment Counsel for Crown: J. Byrne Counsel for Accused: T. Magder Place and Date of Trial/Hearing: Victoria, B.C. October 24, 25, 26, 27, 2017 Place and Date of Judgment: Victoria, B.C. December 15, 2017 [ 1 ] THE COURT: Introduction [ 2 ] The accused Mr. Toenders is charged with sexually assaulting the complainant K.S. on August 31, 2016.

There is no dispute that there was sexual contact between the two. The contentious issue is one of consent. [ 3 ] The complainant testified that in the early morning hours of the day in question, the accused committed a series of unwanted sexual acts upon her. During the last of these she said the accused was in the midst of attempting to rape her when as a means of averting this she offered to fellate him.

All of this happened outdoors in public places in downtown Victoria. [ 4 ] The Crown also called a sexual assault nurse examiner, two independent eyewitnesses, and a number of police investigators. [ 5 ] The accused testified in his own defence. He told me that the sexual acts in question were initiated by the complainant and were consensual. He argued that the Crown failed to prove an absence of consent beyond a reasonable doubt, or that I should acquit him on the basis that in all of the circumstances he had an honest belief in consent.

Background [ 6 ] On the day in question, the complainant was 18 years old and living in a foster home in the Maplewood area of Victoria. She had been "grounded" for a number of weeks because her foster mother was concerned about her drug abuse and unhealthy lifestyle. [ 7 ] The complainant testified that, back then, she was using any sort of narcotic that she could get her hands on. Her drug of choice was crystal methamphetamine. She also told me that she suffers from a number of developmental and cognitive disorders.

She struck me as a vulnerable person with self-destructive inclinations and an under-developed sense of the dangers of nocturnal street life. [ 8 ] Sometime before midnight on August 30, 2016, in defiance of her foster parent's rules and directions, the complainant climbed out of her bedroom window and walked into downtown Victoria. Her ambition was to hook up with friends on the street to consume drugs or alcohol. [ 9 ] The accused meanwhile is a man approaching middle age, 35 years old at the time of trial. On the date of the alleged offence he was a newcomer to Victoria.

His roots are in the Fraser Valley, but recently he seems to have spent time in Ontario where he has two children. He returned to British Columbia after serving a jail sentence. He had a job at an Abbotsford car dealership, but lost it because

he did not have a driver's licence. He moved to Vancouver Island to live with his sister in Langford. She had arranged a landscaping jobfor him through a friend. [10] When the accused arrived in town he learned that his new employer was on holidays. He had several days on his hands withnothing to do. In the early afternoon of August 30, 2016, he started drinking vodka and tequila at his sister's place before heading intodowntown Victoria. He kept drinking throughout the day, replenishing his alcohol supply a couple of times at beer and wine stores.

Bythe time night fell, he found himself wandering aimlessly through the streets of Esquimalt. [11] Later on, probably around midnight, the accused discovered that public transport to Langford had stopped for the day. He toldme that he was drunk by this stage. He lacked the energy for the long walk home. He resolved to return to downtown Victoria and waitfor the buses to start running in the morning.

Along the way he came across a beer and wine store where he bought a 26-ounce bottle ofspiced rum and some beer. [12] The accused ended up hunkering down on the north sidewalk of the 700 block of Cormorant Street just east of Douglas Streetnear the Victoria City Hall. He was drinking, smoking, and listening to music to while away the time.

Just before 1:00 a.m. thecomplainant turned left from Douglas Street to walk eastbound on Cormorant Street on her way to Our Place, a local shelter and street-level service provider where she hoped to find friends and drugs. [13] The complainant was walking by herself with an unlit cigarette in her hand. She asked the accused for a light which he gave toher. The accused testified that he thought the complainant was "a working girl", meaning, as far as he was concerned, that sex with hercould be exchanged for money, drugs, or alcohol.

He told her that he did not have any money or drugs, but that he had plenty of booze. [14] The complainant told me that she thought the accused was good-looking and nice and in any event she loves meeting newpeople. She did not attempt to conceal that she enjoyed the accused's company and flirted with him at first. The evidence makes it plainthat the bottle of rum was a significant allurement. The complainant sat down on the sidewalk next to the accused. They drank andtalked.

The complainant was in no hurry to leave. [15] Before describing the events that followed, I will review the legal principles that I consider to be applicable to the case. Law [16] As previously stated the issue here is one of consent.

The Crown must prove beyond a reasonable doubt that the complainantdid not consent to the sexual activity in question and that the accused did not have an honest but mistaken belief in consent. [17] Consent in respect of the actus reus of sexual assault is determined solely on the complainant's subjective state of mind andtherefore necessitates an assessment of her credibility in light of all the evidence. R. v.

Ewanchuk, (SCC), [1999] 1S.C.R. 330, at paras 26 and 29. [18] Consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question: Criminal Code ofCanada s. 273.1. This consent must be freely given. The Code sets out conditions under which no consent is legally obtained in s. 265(3)including submission by reason of force or the fear of force. [19] The accused may raise the defence of honest but mistaken belief in consent to negate the mens rea of sexual assault.

He mustdemonstrate that he believed the complainant communicated consent to engage in the sexual assault activity. R. v. Ewanchuk atparagraph 46. Consent means, at this stage of the analysis, that the complainant “affirmatively communicated by words or conduct heragreement to engage in sexual activity with the accused.” R. v. Ewanchuk at para 49. [20] The defence of honest but mistaken belief in consent is limited. It must have an air of reality. R. v. Park, (SCC), [1995] 2 S.C.R. 836 at 847.

Furthermore, s. 273.1(2) of the Code stipulates that no consent is obtained where the complainantexpresses by words or conduct a lack of agreement to engage in, or continue to engage in, sexual activity. Also under s. 273.2 (

a) and (b)mistaken belief in consent is not a defence where the accused's belief arose from his own self-intoxication, recklessness, or wilfulblindness, or where the circumstances called for the accused to take reasonable steps to ascertain consent and he failed to do so. R. v.Daigle, (SCC), [1998] 1 S.C.R. 1220 at para 3. [21] An accused cannot rely on silence, passivity, or ambiguous conduct to assert that a complainant consented. R. v. Ewanchuk atpara 51.

If a complainant has expressed a lack of consent to any sexual activity, the accused must make certain that she has changed hermind before proceeding with further attempts at sexual contact. R. v. Ewanchuk at para 52. [22] Finally, because the accused testified, the principles set out in R. v. W.(D.) [D.W.] (SCC), [1991] 1 S.C.R. 742are relevant. As noted by the court at page 758, if I believe the accused, I must acquit; if I do not believe the accused, I still mustconsider whether his evidence leaves me with a reasonable doubt.

Finally, if I am not left in doubt by the evidence of the accused, I mustask myself whether on the basis of the evidence as a whole I am convinced beyond a reasonable doubt of his guilt. I must keep in mindthat the determination of guilt or innocence cannot simply be based on a credibility contest between the accused and the complainant. Evidence/Discussion [23] There are video cameras all over Victoria these days. This is how I can say with specificity that it was 12:48 a.m. when thecomplainant rounded the corner of Douglas and Cormorant Streets.

Video footage of her doing so was captured by a security cameramounted on the exterior wall of a business at 601 Douglas Street. In this footage the complainant can be seen gesticulating at the accusedwith her cigarette. The accused can just be made out in the top left of the frame, his cellphone glowing in the shadows. The complainanttakes a seat beside him on the sidewalk.

[ 24 ] It is also certain on all of the evidence that the accused and the complainant spent about an hour and a half together, because the police arrived on scene and separated them at 2:15 a.m. By then they had migrated to a set of steps in front of a building at 770 Cormorant Street. Several officers attended that location in response to a 9-1-1 call reporting a female in distress.

The emergency call was placed by a witness named Chelsea Travis who happened to be walking nearby. [ 25 ] The accused told me that he was already drunk by this time, and the complainant, though sober when she first met the accused, drank almost the entire bottle of spiced rum during their time together. There are significant gaps in both of their memories.

Fortunately, however, there was reliable external evidence adduced which sharpened the picture, and in my view the basic coordinates of what occurred are clear enough. [ 26 ] First of all, shortly after the accused and the complainant met, a security guard spotted them sitting on the sidewalk and told them to move along. They headed east on Cormorant Street to the rear of a building closer to the intersection of Blanshard Street. This building has an interior courtyard area accessed from Cormorant Street by a couple of flights of steps.

There is a security camera mounted on a pole to the rear of the property which took footage of the two of them at 1:14 a.m. By then they had known each other for 26 minutes. [ 27 ] In this footage the accused can be seen pushing the complainant and trying to wrench down her trousers while she resists and pulls them up. At one point the accused pushes the complainant from behind and bends her over a rectangular concrete planter, holding her down while simultaneously trying to remove his own and the complainant's pants.

The complainant struggles free and hastens off camera, leaving the accused alone in the frame, his pants down around his knees and his erect penis exposed. [ 28 ] The complainant testified that she agreed to none of this activity, and in my view the video footage amply confirms this. There was nothing in the encounter that looked the least bit consensual to me. To the contrary, it had the plain appearance of a forcible attack in which the complainant was being shoved around against her will and was defending herself against unwanted sexual aggression.

The accused was obviously intent on penetrating the complainant when it was perfectly clear that she did not want it and she was fighting him off to the best of her ability. [ 29 ] The accused testified that even after watching this video in open court he had no recollection whatsoever of this specific sexual activity. I accept the complainant's evidence backed up by the security camera footage. The application of force for a sexual purpose is not contested and is explicit in the video evidence.

The absence of the complainant's consent is clearly established, not only from her testimony to this effect but from her actions at the time captured on camera. The accused’s claim that he believed her to be consenting has no air of reality. Additionally, there was no evidence that the accused took any reasonable steps to ascertain consent. [ 30 ] I would convict the accused on this evidence alone. Unfortunately, things did not stop there.

Within a couple of minutes in fact the accused and complainant were picked up by another video camera located within the building's courtyard area, this one showing them sitting on a flight of stairs. The complainant, her perceptions by this time no doubt significantly impaired by alcohol consumption, managed somehow to persuade herself that the danger of their recent encounter near the concrete planter had lapsed. She thought that the accused, to use her words, had "got the memo" that she would not have sex with him. [ 31 ] This turned out not to be the case.

The accused's evidence was plainly to the effect that he considered the complainant's failure to raise the alarm or to take flight as a green light to more sexual activity. He repeated this a number of times during his testimony. He stated that he believed in consent because the complainant stayed with him even after he had made his sexual intentions clear. He said that the complainant was "free to leave" at any time but she willingly stuck around instead. This would seem to be true. But whether the complainant's decision to stay was rational or sensible is not the issue.

A belief in sexual consent cannot be grounded on the complainant's failure to scream, escape, or to call the police. [ 32 ] Neither can a legally sufficient belief in consent be based on the mere fact, conceded by the complainant, that some of her behaviour toward the accused was flirtatious. One sees minor aspects of this in the video footage taken of the parties on the stairs.

There the complainant can be seen sitting very close to the accused, leaning into him occasionally, touching his hand, and putting the rum bottle to his lips. [ 33 ] In light of what had happened mere minutes before near the concrete planter, the complainant's behaviour may be difficult to credit.

Nevertheless, this kind of low key flirtation does not amount to carte blanche for major sexual activity, especially considering the complainant's clear message during the earlier struggle that she was determinedly opposed to the progress of activities in that direction. [ 34 ] In any event, this portion of security footage clearly shows the complainant immediately and emphatically repelling every attempt by the accused to proceed from casual contact to more intimate activity. The complainant can be seen evading his kisses and smartly pushing his hands away whenever they strayed to her chest or crotch.

To my eye, her unwillingness to proceed further is manifest and obvious in this portion of the video. [ 35 ] When it came down to it, in other words, even though the complainant persisted in drinking and socializing with the accused, a colossal error in judgment on her part that I am sure she will remember for the rest of her days, she nevertheless continued to send her "memo" to the accused that mild flirtation was where things stopped. [ 36 ] At the end of this

section of security camera footage, by the way, the complainant can be seen rising to her feet and walking away from the accused after he attempted to kiss her, leaving him once again at loose ends and alone in the picture frame. The complainant's abandonment of the accused when he got too frisky and aggressive was thereby in my view meaningfully repeated. Thereafter the accused can be seen quickly putting on his hat and backpack and hurrying after her. [ 37 ] As I mentioned earlier, a further hour elapsed during which it is not clear what went on.

All I know is that the parties ended up on a staircase leading into a building at 770 Cormorant Street sometime around 2:00 a.m. The complainant told me that she had hung out on this staircase before with her street friends. She remembered touching up her make-up in the reflection of a nearby window. The accused joined her on this set of stairs where once again he began behaving in a sexually aggressive manner. There was no video camera to record this portion of the incident; however, the complainant's evidence was clear enough and, critically, it was confirmed in important

ways by two witnesses who happened by. [ 38 ] On this final occasion, the complainant said the accused became hostile as well as forceful. Once again he tried to remove her trousers, but this time when she resisted he yelled at her and struck her. She told me that he hit her more than once in the face. She remembered being shoved to the ground and hitting her head on the concrete.

She pleaded with the accused on multiple occasions to stop, saying, "No, I don’t want to do this," and "I don't want to do this here." She stated that she offered to fellate the accused as a means of averting greater violence. [ 39 ] I made reference earlier on to a witness named Chelsea Travis. She was walking down Blanshard Street with a friend when she saw the accused and the complainant on the stairs in front of 770 Cormorant Street. The accused, she told me, was completely nude except possibly for a pair of shoes.

She said to herself, "That's not something you see every day." Initially, in her own words, she thought that what she was witnessing was some kind of “kinky” sexual hijinks. She quickly realized, however, that the complainant was "not enjoying the situation." I conclude that this was an understated way of communicating that she perceived the complainant to be in danger or distress. Ms. Travis testified that the accused was leaning towards the complainant and sounded angry and frustrated. The complainant was huddled on the ground in front of him crying, whimpering, and trying to cover up. Ms.

Travis heard the accused tell the complainant to "Sit down and shut up." As she was dialling 9-1-1 she heard a slapping noise. [ 40 ] At around the same time a security guard called Vikas Verma was walking in front of a building across from 770 Cormorant Street. He testified that he saw the accused and the complainant "having sex". He heard moaning and what he called "sex noises". The complainant was kneeling in front of the accused and he had his penis in her mouth, he said.

He thought at first that this was consensual sexual behaviour, but then he said that the accused was "rude", “aggressive”, and “dominating” towards the complainant. He specified that the situation was not calm and that the accused was yelling, repeatedly telling the complainant to shut up, including once after she asked him to stop what he was doing. [ 41 ] The accused himself admitted to being rough with the complainant. He acknowledged slapping her on the face and buttocks but attempted to characterize these as playful "taps" to which, he said, the complainant seemed to respond positively.

He admitted as well that he grabbed the complainant by her hair and asked her, "Do you like this dick?", letting on that the complainant enjoyed this sort of thing as well. He agreed that somewhere in the midst of this he fell "pretty hard" on the complainant and that this must have been how she hit her head. [ 42 ] The accused did not explain how he intuited that the complainant approved of his behaviour.

He was not able to refer to circumstantial factors that might plausibly give rise to a reasonable belief in consent, nor was there any evidence to establish that he took any steps, reasonable in the situation or otherwise, to ascertain her consent. To take such steps is a positive legal obligation imposed by the law which after all these years should be well-known to everybody. Ignorance is no excuse. In any case, I do not believe for a second that the accused honestly thought the complainant was consenting.

I conclude to the contrary that he knew very well that he was forcing the complainant to perform sexual acts upon him against her will and over her clearly expressed objections. [ 43 ] Here, after all, is the scene that greeted the police at their arrival on scene at 2:15 a.m. The complainant was on the stairs, her hair dishevelled and clothes in disarray, cowering before the accused who was standing over her in the nude. He seemed severely put out that he had been interrupted. He displayed noticeable signs of intoxication, and he was angry and oppositional from the moment the responding constables showed up.

As one of them led the complainant away, the accused started screaming obscenities at her, warning her not to talk. His own evidence was that he yelled, "Don’t fucking lie." He said this because he was "upset with being charged with bullshit," but this, I note, was before the police had any chance to figure out what was going on. [ 44 ] I must consider all of the established facts in evaluating credibility.

In this connection I find it very strange that consensual sexual activity should have been followed by unprompted abuse and denunciations of this sort, and also that the complainant, as soon as she was separated from the accused, should have burst spontaneously into hysterical sobs. After she had managed briefly to explain what had happened to her, the police arrested the accused, whereupon he went berserk.

Once advised of the reasons for his arrest the accused flew into a rage that persisted without abatement until swearing, resisting and spitting, he was confined in a body cuff and stowed away in a holding cell back at the police station. I would characterize his behaviour while in police custody as violent, unhinged, and sustained. [ 45 ] The complainant, for her part, in addition to the attending officers' observations set out above concerning her appearance and comportment, was noted to be highly intoxicated and emotional. She required assistance walking.

A pierced earring that had come out of her ear during the fracas with the accused was found near to where she had been sitting on the stairs. In the same general area the police found the complainant's barrette with strands of her hair in it. I conclude that this must have come off when the accused was pulling her hair. An almost empty rum bottle was lying nearby on the ground. [ 46 ] The complainant was later taken to hospital where she was examined by the nurse. She declined to have a full examination and was firmly determined to keep all of her clothing on.

For most of the time she laid on a stretcher in the fetal position with a blanket pulled up over her head. The examining nurse noted a two-by-three-centimetre red bruise with an abrasion to the complainant's right forehead with noticeable swelling. This was, I conclude, the injury she sustained when the accused shoved her onto the ground in front of 770 Cormorant Street. She had dark blue bruising to her right eye, complained of a very sore jaw, had a bruise on the right side of her neck, extensive bruising to her right elbow and forearm, and various other nicks and abrasions.

I conclude on the totality of evidence that all of these injuries were inflicted on her by the accused. Remarks [ 47 ] The overall picture of what happened here is clear in my mind. Far from consisting of consensual activity, what I have under contemplation is a series of discrete sexual assaults. [ 48 ] I have already said that I would convict the accused solely on the basis of the first incident captured on video at 1:14 a.m. near

the concrete planter. That footage clearly confirms the complainant's testimony that the accused was trying to have sexual intercourse with her against her will. This pattern of non-consensual sexual aggression continued, in my judgment, while the accused and the complainant were seated on the stairs in the interior courtyard. Here again the complainant's evidence that she received unwanted sexual touching was borne out by the video footage at that location. [ 49 ] Finally, regarding the incident on the stairs of 770 Cormorant Street, I am left in no doubt that this comprised a serious sexual assault.

In my estimation, the accused became angry and frustrated with the complainant because she would not do what he wanted. The fact that he resorted to violence to force her to submit is clearly made out on all of the evidence. The complainant only complied with the accused's sexual requirements out of fear that greater violence would be showered upon her if she did not. [ 50 ] The complainant, I find, realized that she was in a losing battle with a physically stronger person who would not be deterred by appeals to decency or restraint.

She understood that the accused was determined to penetrate her, notwithstanding her plainly expressed disagreement, and she focused above all on what she could do to avoid this. The lesser evil as far as she was concerned was to offer the accused oral sex instead. She did this, for emphasis, only to avoid what she considered to be more serious acts of violence upon her that she had every good reason to believe that the accused was intent upon committing.

There was nothing consensual about any of this. [ 51 ] As previously mentioned, I do not believe the evidence of the accused concerning consent, or his supposed belief in it. For one thing, he was drunk at the time and has significant gaps in his memory. He could not remember, as previously stated, anything about the incident around the cement planter. He also testified that the oral sex occurred earlier in the courtyard area that I described, and he denied any sexual activity occurring on the steps of 770 Cormorant Street.

This testimony was exposed as unreliable or untrue by other highly persuasive evidence that I accept, notably the video footage from the courtyard and the testimony of two independent eyewitnesses. [ 52 ] I accept the complainant's evidence. There is no doubt that she was drunk by the time the police arrived, and to some degree her recollection of events is compromised. For all that, she struck me as an honest witness without any motivation to invent her narrative which, in any event, was confirmed and corroborated in important and material particulars by the independent eyewitness testimony of Ms. Travis and Mr.

Verma. The injuries noted by the nurse examiner tell their own tale, along with the dislodged earring and barrette. Far from consisting of consensual sexual activity initiated by a willing complainant, I am persuaded that this, to the contrary, was a violent, ugly, and dangerous sexual assault committed by a much stronger and larger adult male upon a vulnerable, weaker female teenager. [ 53 ] I do not mind saying, as well, that the accused's behaviour in my courtroom was decidedly off-putting.

He was unable to suppress a spasm of profane abuse directed at the complainant while she was testifying, displaying an astonishing lack of self-control, and when he took the stand himself he proved in my mind to be an arrogant, lippy, and ill-tempered witness, interrupting counsel and swearing aloud repeatedly. I was singularly unimpressed by this performance, and I was not the least bit moved or persuaded by his evidence or his manner of giving it. Conclusion [ 54 ] I am satisfied beyond a reasonable doubt, in short, that the accused applied force to the complainant for a sexual purpose and without her consent.

I reject the accused's claim that he had a reasonable belief in consent. To the contrary, I find that he knew that the complainant did not consent to any of the activity in question. This is not, for emphasis, a case of recklessness or wilful blindness.

Instead I conclude that the accused willfully and advertently forced himself sexually upon the complainant resorting finally to physical violence to compel her to submit, knowing full well that she did not agree to any of it. [ 55 ] This conclusion is not based only on my acceptance of the complainant's testimony but also taking into account the totality of other evidence referred to above which in my view establishes beyond a reasonable doubt that there is no air of reality to the accused's claim to have acted on a reasonable belief in consent. I do not believe the accused's testimony.

It does not raise a reasonable doubt in my mind. I find the accused guilty as charged. “Baird J.”