R. v. Manroe, 2022 ONCJ 648

CITATION: R. v. Manroe , 2022 ONCJ 648 DATE: March 15, 2022 Court File No. 0411-998-20-7574-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. WILLIAM MANROE R E A S O N S F O R J U D G M E N T REMOTELY BEFORE THE HONOURABLE JUSTICE BOURGEOIS on March 15, 2022, for an OTTAWA, Ontario proceeding PUBLICATION ORDER UNDER

SECTION 486.4 OF THE CRIMINAL CODE JUSTICE OF THE PEACE ST. JEAN Ontario Court of Justice Dated: November 19, 2020 APPEARANCES: IDENTIFIED AS ANNOTATED - PARTICIPATED VIA REMOTELY FROM UNKNOWN LOCATIONS T. Fairchild Counsel for the Provincial Crown W. Lust Counsel for William Manroe TUESDAY, MARCH 15, 2022 PLEASE NOTE: PROCEEDINGS WERE RECORDED REMOTELY. PORTIONS OF THIS TRANSCRIPT CONTAIN A HIGHER THAN USUAL NUMBER OF [INDISCERNIBLE] NOTATIONS DUE TO TECHNICAL FAILURE AND POOR QUALITY OF THE AUDIO, AND SOME WORDS MAY NOT HAVE BEEN CAPTURED ON AUDIO DUE TO INTERMITTENT FADING AND/OR MUFFLING OF MICROPHONE.

SOME PARTIES ARE PRESENT IN COURT WHILE OTHERS ARE PARTICIPATING IN THIS HEARING REMOTELY FROM DIFFERENT LOCATIONS. AT TIMES AUDIO RECORDING DOES NOT MEET REQUIRED STANDARD AS DULY NOTED HEREIN.

... WHEREUPON MATTER COMMENCES (9:02 a.m.) ... EXCERPTS OF PROCEEDINGS (9:03 a.m.) R E A S O N S F O R J U D G M E N T Transcribed verbatim as spoken on the record for purposes of judicial review and can be checked for accuracy by listening to the Liberty DCR audio recording 0411_CR08_20220315_084939 6_BOURGEJUL.dcr BOURGEOIS, J. (Orally): Mr. William Manroe is charged that on May 22 nd , 2020, he sexually assaulted his friend - and here I’ll refer to her initials only, given the publication ban. So, the complainant’s initial I’ll refer to as S.G., contrary to

Section 271 of the Criminal Code of Canada . The allegations are that on May 21 st , 2020, after work, the complainant invited him over to her apartment to hangout. They both agreed that despite previously ending their romantic relationship, they still cared about each other and remained friends. After an uneventful evening, at around 11 p.m., it was time to go to bed. He thought he would be sleeping on the couch, but she invited him to sleep in her bed as it would be more comfortable than the couch. Their evidence diverges at this point as to who did what and when. In essence, Ms.

S.G. explained that they went to bed and she woke up to Mr. Manroe inserting his finger inside her vagina. Even though she does not recall specifically her position that night, she specified in cross- examination that she usually falls asleep on her side and she is not a light sleeper. After waking up and realizing what was happening, that Mr. Manroe was fingering her, to make it stop, she turned on her side away from him. However, he kept persisting and trying to insert his finger inside her. As a result, she masturbated him, stroking his penis with her hand, hoping to then end the interaction.

In cross-examination she specified that she also used lubricant, as she had also mentioned in her statement to the police, to facilitate the process. He did not ejaculate, but told her to turn on her side. She did, and he was then pushing his penis against her, trying to penetrate her. She verbally told him, “no”, and tried to push him away from her with her left hand extending her arm out to create space between them. He did not respond to her, but eventually succeeded in penetration.

She stopped pushing, described herself as going blank for a few moments and then snapping out of it, getting up, and running to the bathroom. He was not wearing a condom and she does not remember if he ejaculated. She is not sure what time it was, but described it as still being dark outside. She stayed in the bathroom, she is unsure for how long, but eventually got ready for work and left without breakfast. When she returned home after work she told him to leave.

She does not specifically recall when and what precisely she wrote, but she texted him on a couple of occasions and ultimately telling him they could not be friends or talk to each other anymore. On the other hand, Mr. Manroe testified that when they went to bed he was lying on his side with his right arm extended and she laid on

her back with her head resting on his forearm. After a few minutes, he started rubbing the top of her thigh between her knee and the middle of her thigh. He knew she was not sleeping yet as she would normally do small twitches signifying, she is asleep, and had not done so. He explained he initiated that touching as a sign of affection, as he cared deeply for her, and to show his care for her. It was also to gauge her interest and engage a line of communication for any other type of sexual activity.

He was caressing or touching her leg to open that line of communication for intimacy, but he did not get gratification from it. In cross-examination, he testified he initiated the line of communication by rubbing her thigh not to initiate sexual activity, but to show his affection. He later also explains he was opening the line of communication to see if she was willing to do something, to give her the opportunity to do so. No words were spoken by either of them and she turned over onto her right side after a few minutes, facing away from his, but her head still resting on his forearm.

He explained that he understood from this that she was not receptive to it and wanted to lay down, so he left it alone and did not persist or continue what he described as the rub line. He added that this was a very muddled signal and to him, this was not a resounding answer. In cross-examination, he disagreed that when she turned away from him it did not mean she was not receptive to intimacy in the sense of affection. It was not a clear sign she was not interested. Her turning away from him was not an answer of any sort in relation to consenting to physical affection, but her head was still resting on his arm.

After about 10 minutes, he testified that she began to move her buttocks closer to his groin area and rubbing in a circular motion. He was then more confused as she had turned away from him earlier and she was now opening the lines of communication. Therefore, he started rubbing the outside of her thigh gently to indicate he was receptive to what she was doing. He did not initiate anything more sexually explicit at this point, as he wanted her to do the first move. He did not always want to be the one starting it, and if she wanted a sexual encounter, she could let him know.

After two minutes, she took his penis out of his boxer shorts and proceeded to masturbate him. As a result, he placed his hand closer to her groin. She opened her legs more and he took that to mean that she was into the encounter and began rubbing her groin. This is when he says she took the lubricant from her night table and applied it to her hand and placed it on his penis. She then removed her underwear. From this he understood they were about to engage in intercourse. He therefore asked her to turn over to her right side. She guided his penis into her vagina.

The intercourse began with her left leg up in the air and he could then see her stimulating her clitoris by rubbing herself with her left arm or hand. After five minutes, she got up and went to the bathroom. He testified he was really confused then. After a few minutes, she returned to the bed and laid on her right side away from him. No words were exchanged and they fell asleep. The next morning, he asked her if everything was all right, she said yes, and kissed him. She got ready and left for work.

They communicated during the day and all seemed fine, but when she arrived home she did not speak to him and went to the balcony. He therefore decided to leave and texted her he was leaving. Once he arrived home he was surprised to read the text she had just sent him about not being friends anymore. Some redacted text messages between them, and between Mr. Manroe and his friends, including excerpts of texts he had exchanged with another friend, were also filed as Exhibit 2 and 4, along with a photo of the bed in the room where the interaction took place as Exhibit 3. The lawyers also filed admissions pursuant to

Section 665 of the Criminal Code as Exhibit 1 in relation to the authenticity and history of the text exchanges. In assessing the witness’ evidence I am reminded of the following legal concepts:

Firstly, the burden always rests upon the Crown to prove guilt and never shifts on the accused. It is for the Crown to prove each elementof the offence beyond a reasonable doubt. An accused person does not have to prove or disprove anything. Secondly, doubt cannot be far-fetched or based on sympathy or prejudice, but rather based on reason, logic, and common sense, from theevidence or lack of evidence. It is not enough for the Court to conclude an accused person is probably guilty, but a reasonable doubt doesnot amount to absolute certainty as this would be next to impossible to achieve.

Finally, when assessing evidence, I may believe none, some, or all of a witness’ evidence. I’m entitled to accept parts of a witness’evidence and reject other parts. I can accord different weight to different parts of the evidence that I have accepted. Also, in analyzing the totality of the evidence presented, the principles enunciated by our Supreme Court of Canada in R. v. W.(D.) arecentral and can be summarized as follows: Firstly, if I believe the accused, I must acquit him. Secondly, even if I disbelieve the accused but his evidence raises a reasonable doubt, I must acquit him.

And finally, even if his evidence does not raise a reasonably doubt, I must be satisfied that the evidence I do accept is sufficient tosupport his conviction beyond a reasonable doubt. More specifically in this case, the Crown needs to prove beyond a reasonable doubt, the essential elements of the offence of sexualassault. The actus reus of the offence comprises of three elements: Firstly, touching, meaning the objective voluntary application of any force or gesture to attempt or threaten to apply force to another.

Secondly, the sexual nature of the touching, meaning the objective circumstances of the touching being in a sexual or carnal context to areasonable observer. See R. v. Chase, (SCC), [1987] 2 SCR 293. And thirdly, the absence of consent, meaning the subjective internal state of mind of the complainant toward the touching at the time itoccurred. This trial requires the court’s attention on this third element; the proof of the absence of consent beyond a reasonable doubt by theCrown. The accused’s perception of the complainant’s state of mind at this stage of the analysis is irrelevant.

The Court needs to firstlydetermine whether the Crown proved beyond a reasonable doubt that there was no consent to the sexual touching. The Supreme Court of Canada provided guidance and direction over the years on the element of the absence of consent through theirteachings in R. v. Ewanchuk, [1991] 1 SCR 330, R. v. J.A., 2011 SCC 28, R. v. Barton, 2019 SCC 33, and R. v. G.F., 2021 SCC 20.

More specifically in relation to the subjective consent, the Supreme Court of Canada in G.F. at paragraph 31 to 33, explained that a trialjudge needs to make factual findings about whether the complainant subjectively and voluntarily agreed to the sexual activity in

question. If the trial judge is satisfied that no such agreement existed, then the actus reus of the sexual assault will be established. Subjective consent is also defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”, pursuantto

Section 273.1(1) of the Criminal Code, and clarifications and some vitiating factors are set out under paragraph 273.1(2) and (3) of the Criminal Code. Relevant in this case is paragraph 273.1(2)(a.1) as it means no consent is obtained if the complainant is unconscious. In other words, thecapacity to consent is a precondition to the subjective consent. As specified in J.A. supra, consent requires that the complainant have anoperating mind at the time of the touching and choosing whether or not to consent to it.

It has also been settled in Canada that consent cannot be implied by pre-existing relationship or the passivity of a partner. Specifically, inEwanchuk, in 1991, the Supreme Court of Canada stated at paragraph 51 that silence, passivity or ambiguous conduct is not consent. Also, in R. v. M.(M.L.), (SCC), [1994] 2 SCR 3 and in J.A., supra, the Supreme Court of Canada clarified that there is norequirement that a complainant offer some “minimal word or gesture of objection” in order to be found not to have consented.

And finally, where the trial judge finds beyond a reasonable doubt that the complainant expressed a lack of agreement to engage orcontinue to engage in the sexual activity by words or conduct, see paragraph 273.1(2)(

d) and (

e) of the Criminal Code, then the elementof absence of consent has been established. The Crown also needs to prove beyond a reasonable doubt the mens rea of the sexual assault. It comprises of two elements; firstly, theintention to touch because it is a crime of general intent, the Crown need only prove the basic intent to touch the complainant, andsecondly, knowledge of or willful blindness or recklessness as to a lack of consent of the person being touched.

This is where the Courtconsiders whether the Crown proved beyond a reasonable doubt that the accused either knew the complainant was not consenting or waswillfully blind or reckless as to her lack of consent. The doctrine of “honest but mistaken belief in communicated consent” is usually considered, when applicable, at this stage of theanalysis.

Specifically, in Barton at paragraph 90, the Supreme Court of Canada reaffirmed the meaning of consent for mens rea purposesas follows: For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent,“consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexualactivity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether theaccused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” (ibid., at para. 47). This case does not turn on the defence of honest but mistaken belief in communicated consent, rather, it is a case where I need todetermine whether the Crown proved beyond a reasonable doubt each elements of the offence, including the third element of the actusreus, the absence of consent of the complainant. It is with these principles in mind that I have considered the evidence of Mr.

Manroe and conclude that his evidence does not raise areasonable doubt about Ms. G.’s absence of consent, and I do not accept his evidence as being credible on the first two prongs of the W.(D.) analysis. I am satisfied the Crown proved beyond a reasonable doubt Ms. G.’s absence of consent to the sexual activity she described as fingeringwhile she was asleep, and after waking up, and to the sexual intercourse. I found the complainant to be credible and a reliable witness. She answered each question directly in a forthwith manner, concisely andclearly.

She was cautious to specify the details she did recall and those she did not. There were no contradictions or inconsistencies in herevidence in court and with the statement she provided to the police. She was unshaken in cross-examination. She did not intend to, norexpected to have any sexual contact with Mr. Manroe that evening and that night.

Inviting Mr. Manroe to share her bed was nothing more than being kind and generous to him as it was much more comfortable than the couch. There is nothing strange about this, despite Mr. Manroe’s evidence that he found the invitation strange. However, he did not ask her any questions about it and did nothing to clarify any confusion he might have had about it. I reject Mr. Manroe’s evidence that the complainant laid on her back with her head on his forearm when they went to bed. Mr. Manroe presents this portion as evidence of her cuddling with him and sleeping within inches of him.

The complainant does not think they cuddled when they went to bed, but does not exclude the possibility. However, this specific position, that is her head on his forearm, was not presented or suggested to her. She was not asked, questioned, or confronted with having rested her head on his forearm. She testified she did not recall specifically the position she was in, but that she usually falls asleep on her side. She was not asked either whether she could consider this particular position, resting her head on his forearm while laying on her back to have been considered cuddling.

I accept that she genuinely does not recall specifically how she was positioned when she went to bed and fell asleep because there is nothing special to recall from it. I also reject Mr. Manroe’s evidence that she was not sleeping when he says he touched or caressed her thigh. His evidence is internally incompatible and exaggerated. He explains that he knows she was awake because they slept in the same bed before and she does small twitches signifying she is asleep.

If I was to accept his evidence, I would have to accept that every time she falls asleep she does those small twitches as this is what he relies on to conclude she was not sleeping. However, when he testified that she came back to bed from the bathroom after the interrupted sexual intercourse, he does not describe those small twitches afterwards. Either he fell asleep before her, or she did not do those small twitches. He was not asked, questioned, or confronted about it, but it is a very difficult proposition to accept.

The complainant could certainly be wrong as to the timing of night when she was first touched by Mr. Manroe, but I certainly accept her evidence that whenever that was, she was sleeping. This might seem like a small detail in the grand scheme of the unfolding of events that night, but it is a crucial detail in relation to how the sexual contact started. What I find particularly problematic in Mr. Manroe’s evidence is his testimony about why he touched the complainant at that point.

He tried to provide an explanation as to why he would touch her, but in the context of his earlier evidence that he found it strange that she would invite him to sleep in her bed instead of on the couch, but said nothing to her about it, and the next thing he does, as per his own evidence, is touch her thigh. His evidence as to the reason he touched her thigh was to either show his affection or to gauge her interest and engage a line of communication for any other type of sexual activity, or for intimacy, which in cross-examination specify meant in the sense of affection.

I reject his evidence that he caressed her thigh in this manner for whatever reason he says he did so. Ms. S.G. did not intend on having any sexual contact with Mr. Manroe. He knew that. They were not in a romantic relationship anymore. They were friends. He clearly would have liked and even perhaps expected to have some form of sexual contact with her after she invited him to sleep in her bed instead of the couch. That is why he says he was confused by that, but he chose not to clarify this with her. After she woke up to his finger in her vagina, she turned away from him.

What is there not to understand from that behaviour? However, Mr. Manroe claims to be unclear about it. Again, it is a missed opportunity not to have asked her then, especially given his apparent confusion of having been invited to sleep in her bed. I reject his evidence that she then rubbed her buttocks against him. She could not have consented to the initial sexual contact of inserting his finger inside her vagina during her sleep. I accept her evidence that when she turned away from him he started again. She did not want to have any sexual contact with him that evening or that night.

It was her way to manage the situation, hoping it would stop at this point, to masturbate him. Her explanation is logical from her perspective. It is also in that perspective that she obviously used the lubricant, as her ultimate goal was to satisfy him sexually in this manner and end the sexual contact with her. Her answers to this line of questions in cross- examination were so plainly obvious, genuine, and forthwith, the logic almost pierced the eye.

The only reason she engaged in masturbating him was to satisfy his sexual appetite after she woke up to him fingering her, after she turned away from him, and after he persisted in trying to finger her again. She did not willingly masturbate him. To achieve her intended purpose of satisfying him, she used lubrication to facilitate her objective of getting him to climax in this fashion, and therefore, putting an end to the sexual activity she had not consented to in the first place. They both agree in their evidence, that he did not climax or ejaculate as a result of the masturbation.

They also both agree that he is the one who told her to turn on her side and attempted to insert his penis inside her vagina. Finally, they both agree that she suddenly got out of bed and went to the washroom. I accept her evidence that she verbally expressed her disagreement to the sexual intercourse and tried to create space between them by extending her arm backwards. She did not want to engage in sexual activity with him that evening or this night. She testified that she felt fear and panic, gave up and went blank in her mind. She described snapping out at some point and going to the bathroom.

I also see no reason not to accept her evidence on this aspect. She was clear, detailed and unshaken about it. I have considered the absence of evidence in this case about her lack of memory as to when and how her underwear were removed, if removed.

However, when I consider the evidence on the sequence of events starting with a sexual contact while she was asleep and the emotional state she found herself in when he told her to turn to her side, I conclude the absence of memory on this detail does not impact the reliability or credibility of her evidence in relation to her not consenting to the fingering, the masturbation, or the intercourse. I reject Mr. Manroe’s evidence that she was in fact, the instigator of the sexual activity and that she was stimulating herself and guided his penis into her vagina. It runs completely afoul her unshaken evidence.

His evidence is not credible on these points. He again claims to have been confused by her sudden stopping and leaving to go to the bathroom, yet he does not even ask her one question about it when she came back to bed. This is because he knew she did not want to have sexual contact with him and also because she did not come back to sleep after this episode. It is in this context that the text messages, filed as exhibits need to be considered. The factual background to them need to be understood, determined before they can be correctly considered and not the other way around.

I find them to be of limited use in the analysis. However, after considering the totality of the evidence, they do corroborate the factual findings to a limited extent. I do reject his explanation about being half awake, meaning when they went to bed at 11 p.m. or so. There is no evidence either one of them were half awake at that time, but rather it was her regular bedtime as she was working the next day. He did not testify he was half asleep either when he undressed to get into bed.

This portion aligns much more with the evidence that the sexual activity took place in the early hours of the morning when it was still dark outside. I also reject his evidence that he did not want to be too vivid or graphic in the details he was providing to Ms. Cripps, his friend, when trying to explain why he did not tell her that the complainant was rubbing her buttocks against his groin, as Ms. Cripps did not want to hear that. Firstly, there is no evidence of what Ms. Cripps wanted to hear or not, but more importantly, it is contradictory to the rest of the more graphic details he provides her.

This is important because he leaves out portions, sequence of the sexual encounter, yet he claims he is seeking a friend’s opinion but then leaving parts out.

He did not write that part to her because it did not happen. If he truly wanted his friend’s opinion on these matters, he would have included the apparent and arguably more obvious part of her rubbing herself on him to justify his engaging in sexual activity with her. His own words in the text exchange that he was rubbing her and she turned away, but then he started again and she let him do it, is quite indicative of his ignorance of her consent or lack thereof.

It is irrelevant, in fact wrong in law, that she did not get up from the bed earlier, that he did not hold her there, or as put to her, “what she thought was going to happen when he told her to turn around after not having ejaculated during the masturbation.” The onus is not on her to remove herself physically or resist, or even make an educated guess as to what is going to happen next. She did not consent to any sexual activity and he knew it, or was willfully blind or reckless about it. Her evidence is solid, credible, and reliable. I accept it and it leaves no doubt. She did not consent.

In conclusion, for the reasons described here, I reject his evidence. His evidence does not raise a reasonable doubt, and I accept her evidence that she did not consent to any of the sexual activity. I am satisfied the Crown met its onus and proved beyond a reasonable doubt each essential element of the offence. Therefore, Mr. Manroe, I find you guilty of having sexually assaulted Ms. G. on May 22 nd , 2020. ... PORTIONS OF PROCEEDINGS NOT TRANSCRIBED. AVAILABLE UPON REQUEST (9:39 a.m.) ...

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