r v. BATCHELOR, 2022 QCCQ 6811

R. c. Batchelor 2022 QCCQ 6811 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU CITY OF GATINEAU Criminal Division Nos: 550-01-114718-192 DATE: October 6, 2022 * ______________________________________________________________________ BY THE HONOURABLE RÉAL R. LAPOINTE, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

BATCHELOR, Paul David Grant Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ * Judgement given orally, September 16, 2022. [ 1 ] Mr. Paul Batchelor has been tried on three indictments whereby it is alleged he committed sexual assaults (Section 271,

a) C.cr.) on different victims. These charges are alleged to have been committed at different dates, in the City of Gatineau. [ 2 ] More specifically, between August 18 and 19, 2017, the alleged assault was seemingly committed on Ms. N.F. (1990-[...]). [ 3 ] Then, on or about July 15, 2018, another sexual assault is alleged against Ms. A.S. (1998-[...]). [ 4 ] Finally, a third indictment provides that it is about May 5, 2019, that the Accused would have committed such an assault on Ms.

A.T. (1990-[...]). [ 5 ] It is important to specify that the alleged victims are not known to each other, have never met or had contacts together. [ 6 ] During trial, this Court ruled in an oral judgment [1] that Crown’s Application for a count-to-count similar fact introduction into evidence should be denied.

Other than in this ruling, the present matter is a question of fact. [ 7 ] However, this Court’s ruling on the Application briefly stated, will shed in résumé background information on all three incidents which will thereafter be analysed separately. [ 8 ] Firstly, there was no significance for the purpose of this trial as to the spacing in time of each alleged incident. The eleven or twelve months, or more, or less, was only of remote interest.

It did nothing to characterize the events. [ 9 ] Similarly, the fact that all three alleged incidents arose from initial online dating, were it from the same or distinct media applications, was not a sufficiently significant particularity for the purpose of the Application.

The Accused had been quite truthful in the résumé he had posted and there was no reason to believe he had been fraudulent in the presentation of his profile; hence, there was no criminal pattern. [ 10 ] And the fact that the Accused had in two of the three initial contacts, suggested to meet at a restaurant + bar situated near his home, was unconvincing of any purported misbehaviour, as it was uncharacteristic of any distinctive feature in dating patterns. [ 11 ] Though there was nothing characteristic in the manner of the man’s fondling the complainants, nor in the manner of his touching body parts, there was some similarity in the description all three alleged victims described the man’s manners in private.

He

was said to be insistent and/or pushy in his progression towards a more complete sexual experience, by all three women. [ 12 ] But in the general evaluation of the factors connecting the alleged similar facts, it was insufficient. [ 13 ] And the assessment of the prejudice revealed itself to be far too great and the potential for moral prejudice accordingly too high. Similar fact evidence was ruled inadmissible. [ 14 ] Consequently, the evidence will be assessed independently in regard to each Complainant.

In the matter of N.F. (1990-[...]) [ 15 ] In the course of August 2017, the parties “met online”, through the Tinder dating application, which exhibited photos and profiles and comments and text messages of the users. [ 16 ] After exchanging numbers, the Complainant and the Accused also had one telephone conversation to arrange for a date.

Seeing that N.F. was not familiar with that area of Gatineau, it was agreed the Accused would drive to her home in Ottawa to pick her up around eight o’clock that evening. [ 17 ] The couple had dinner and drinks at the selected restaurant and returned to the vehicle and to the Accused’s apartment, where the offense allegedly occurred. [ 18 ] It consisted of much touching of her private parts over her clothing. There were attempts to undress her explains Ms. N.F.

Further, the Accused requested she stay overnight and asked for oral sex. [ 19 ] It is agreed by both parties there was consensual prolonged kissing, but the Complainant insists she had “laid out boundaries” before accepting to enter his apartment. This was so, since such invitations generally imply sexual ongoing. The Complainant testifies that the Accused seemed understanding and said it would not be a problem. [ 20 ] As the kissing progressed the Complainant had to remind the Accused that she did not want to “go any further”.

He, nevertheless “… grabbed my breasts and bum…”. [ 21 ] Finally, she testifies, the Accused removed her shirt and attempted to also remove her jeans. [ 22 ] It remains unclear precisely when it was said, but Complainant testifies she told the Accused she wanted to leave. He accepted this and offered her a ride back to her home. She accepted this, and she adds, nothing else occurred during this drive home. [ 23 ] They have never had contacts since. And the Complainant did not report the incident until much later, under very unusual circumstances. [ 24 ] It was approximately two years later.

She states that she learned through a local newspaper report published on Facebook, that he, whom she recognized by way of the same picture he had used on Tinder, which the newspaper published, had been acquitted in an Ottawa Court of sexual assault charges. This image “brought back the memory”, she testifies. [ 25 ] She shortly thereafter went to the Ottawa police and was referred to their counterparts in Gatineau and ultimately charges were laid. [ 26 ] The accused testified in his defense. He states, that evening they walked back from the restaurant to his apartment and did not drive.

They were actually walking to where he had left his vehicle, in his usual parking place at his home. [ 27 ] The Accused testifies they chatted outside next to his SUV and after several minutes he invited her in, and she accepted. [ 28 ] Upon entering, the Accused claims while he got each a beer, she made herself at ease and sat on the couch. He sat next to her and in very little time, they were consensually kissing passionately. [ 29 ] This led him to think it was likely they would have sex. He raised a hand on her torso, on top of her shirt below her breast. She moved his hand away while continuing to kiss him.

He testifies, at that point he knew they would not share sex. He adamantly denies touching her private parts and attempting to undress her. [ 30 ] The Accused testifies he was not upset by her wanting to leave after a while. He states he had assumed all the time that he would drive her back home. [ 31 ] The Accused denies asking for oral sex, explaining, the very idea would be nonsensical as he was unable to touch her breasts. Analysis [ 32 ] Ms. N.F. was at the time in her mid-twenties and was a College graduate.

She testifies she only accepted the Accused to drive her back to her home because she was unfamiliar as to how to go about getting a cab in Gatineau. This strikes the Court as being odd. The explanations given for accepting that this man drive her home, minutes after sexually assaulting her, leave this Court in disbelief. [ 33 ] In this regard, the fact that she was in an open relationship with another man had been discussed at some length that evening by the two. She did not call this person for him to come pick her up.

She admits she was at no time under any pressure from the Accused to accept his offer to drive her back home. Similarly, she admits, at no time did he prevent her from using her cellular phone, nor did he try to discourage her in any way from doing so. [ 34 ] And she adds that at no time did he use any physical restraint over her. He also accepted when she declined to share in oral sex.

[ 35 ] Despite what had allegedly occurred in the preceding minutes, she accepted to ride alone with him in order to return home late at night, and without notifying anyone of her plan to do so. [ 36 ] She did not attempt to reach her life-partner in order that he come to fetch her. She acknowledged he has a car but felt it was too late in the evening to disturb him, even if she was in distress. And she did not call for a cab, nor did she call a UBER driver which is the mode of transport she usually chooses. [ 37 ] Her explanations are not satisfactory.

Her decision to be driven home by the very man who had seemingly assaulted her sexually moments earlier seem very unlikely and very unreasonable. [ 38 ] Calling a cab is basically always the same routine in all cities. She gave equivocal reasons for not calling UBER. It appears she was unsure whether they operated in this City. But she made no attempt to verify this option. And then she wrote a friend the next day, explaining she used this mode of transport to return home. [ 39 ] Ms. N.F. admits she misinformed her friends of this date the next day.

She sent at least one text message to a confidant explaining it was a bad and unpleasant date where she was sexually harassed. She led him to believe she has used a UBER drive to return home. She did not want friends to worry about her dating patterns she testified, and they would have considered it worrisome that she let such a man discover where she lived. [ 40 ] This clearly brings about the question of when exactly is she truthful? And she does not explain how and when her claim of having been “sexually harassed” had become “sexually assaulted”. [ 41 ] Ms.

N.F. insists she has an improved memory of the events at the time of testimony (January 13, 2021), as opposed to when she made a statement to police back in October 2019 of the events that had occurred over two years earlier. This statement, by itself, calls for caution. [ 42 ] An example of her recollection of the events lies with the type and colour of the vehicle she claims the Accused had. She is categorical and makes it “a major thing” that the Accused’s vehicle was a black truck.

She is adamant it was not a red SUV. [ 43 ] On the other hand, the Accused claims that at the time he had a Ford Escape, a red SUV which he drove for many years since 2011 or 2012. He testifies he has never driven a black truck. And no one in his family have ever owned a black truck that they may have lent him; and in any case members of his family live several hundred kilometers away. This matter remains trivial to the charge at issue, but must be taken into account in assessing what she describes as her better memory. [ 44 ] More importantly, Ms.

N.F. acknowledges that she only remembered the day of her testimony at trial that her shirt had been taken off in “… some type of a scuffle…” when he overcame her physical resistance. [ 45 ] This statement is in contradiction with earlier testimony whereby it was stated he was never physically overwhelming. And though it is by far the most important of the events described on a scale of seriousness, it was overlooked in her police declaration. Ms.

N.F. claims that while watching the video declaration in preparation for trail, it “… triggered a traumatic memory…” that she had not yet recalled when giving her police statement. She recalled on viewing the recording that “he was also trying to take my pants off”. [ 46 ] There is much inconsistency in Ms. N.F.’s testimony.

The physical encounter between the two is not supported by her testimony generally and is specifically incompatible with her statement whereby she explained, the man was trying to “convince her” and to “cajole her”; he was, nothing less that negotiating for oral sex, as she explained it. [ 47 ] Ms.

N.F. has also stated that “… when things were going too far…”, during which time they were kissing mutually and his hands were moving over her clothing, she had not “made it clear to him there were limits”; this statement is incompatible with her other statement that she had laid out boundaries. [ 48 ] Ultimately, these are important contradictions. There is no reason to believe in any bad faith on the part of the witness. However, it seems likely time, and/or the fact that it became known to the witness that Mr. Batchelor had been charged with another sexual assault may have distorted the Complainant’s memory.

Defense Counsel insists her perception of the events were impacted by this discovery, thereby prompting her to lay charges. He calls for the utmost prudence in assessing her testimony. [ 49 ] Such evidence cannot lead to a conviction. By its very nature and considering the testimony of the Accused, the matter is dismissed, and Mr. Batchelor will be acquitted. In the matter of A.S. (1998-08-03) [ 50 ] Ms. A.S. explains she had sex with the Accused. This was after a dinner date, when they later went to his apartment by a municipal beach.

And she returned to his apartment the next day and again they had sex together. [ 51 ] Afterwards she pressed charges, convinced she had been raped (her expression) by the Accused. It was about a year later. [ 52 ] Meanwhile, she had believed that the first incidents occurred because of her. After leaving the restaurant where they shared dinner together, she had accepted a ride to his home thinking they would walk on the beach. And she went into his apartment voluntarily. [ 53 ] She testifies that she blamed herself for these incidents, because accepting to ride with him and then going into his apartment

could have led him to believe that she wanted sex, as he clearly did. [ 54 ] The following year, however, she saw that someone had posted a picture of Paul Batchelor on a social media. It was reporting a newspaper

article about his involvement in an alleged rape. He had been acquitted. [ 55 ] A friend of hers, someone she trusted fully “… made a big impact on (her) to come forward”. She motivated her to do so. It was less than a week later that she went to the police in order to file a complaint. [ 56 ] Ms. A.S. testifies that until she became aware of the implication of the man she had dated in a rape case, she never felt she had been herself raped. She adds that she had never felt that a crime had been committed. But as she testifies, “… everyone (i.e., her friends) disagreed”. They told her it was rape.

Now, she feels there was wrongdoing. However, in her testimony, she ambivalently estimates still today, that she does not know if she was “… 100% a victim”. [ 57 ] In cross-examination, she confirms the process that was triggered by the news story. She was led from blaming herself for that evening spent with the Accused, to laying charges he had sexually assaulted her.

She did so because she feared there would be other victims if she did not, and other people would get hurt. [ 58 ] Also, she explains that she was “concerned and unsettled” by the news story, whereby it was reported the judge explained that consent could be given verbally or by way of behaviour. She did not share his view. [ 59 ] It is in such a context that Ms. A.S. describes her encounter with the Accused. She explains that she felt at ease with him at first. He was pleasant and articulate and as she puts it, she saw no “red flag”. [ 60 ] She specifies that she had made it “verbally clear nothing would happen”.

But in the apartment, she agreed to consensual kissing on his sectional couch. [ 61 ] After a while of this, he became more forceful, a “different Paul”. She claims she said no many times and then “went with it”. They shared several hours of sexual intercourse in a wide variety of ways. [ 62 ] Importantly, Ms. A.S.’s memory of the specifics is unclear, and she states that “… pieces are missing…”. She does recall however a conversation they had about sexually transmitted infections. [ 63 ] And when the Accused explained it was because he was allergic to latex condoms that he did not use any, they pursued.

They had a short conversation about anal sex, she explains. She acknowledges saying “… yes let’s do it …” and she allowed that to happen. [ 64 ] Afterwards Ms. A.S. recalls going to the washroom. And she claims she returned to him “because she had sort of given up”. Finally, she is unsure whether they showered together or separately, but both did so. [ 65 ] The Complainant claims Mr. Batchelor used “…words to obtain my consent for oral sex”, which were innocuous. And he never used force against her or got angry. She acknowledges he never prevented her from going to the washroom or elsewhere.

She says he used no violence though he did slap her behind and she did feel pain during anal sex. She was not enthusiastic about the sexual activities generally. [ 66 ] Ms. A.S. confirms she played with Mr. Batchelor’s blond hair after sex was over. She specifies it was meant to be an affectionate gesture. [ 67 ] Then, the man drove her to her car, and she left. He enquires by text if she has made it home. She responds politely at about 4h35 a.m. (D-1). [ 68 ] The following day, she initiates a text exchange. She wishes to go to the nearby beach with him. She wishes to talk. He responds with sexual innuendo.

She responds accordingly. [ 69 ] They do share time together at his apartment and she is home before 10h30 p.m. [ 70 ] Ms. A.S. explains she wanted to talk to the Accused because of her first experience with him. She felt confusion and wanted to clear up matters about his conduct. He responds facetiously that he would like to engage in sex again as she demonstrates it by text printouts. The two did have a conversation and then they engaged in more sexual intercourse.

She was quite indifferent to what was occurring, and he interrupted the exchanges because he felt bored and told her that she seemed less enthusiastic than she had been on their first date. She specifies she does not recall apologizing. [ 71 ] A few days later she sent him a text message trying to arrange for a third date at a movie this time. He did not respond. [ 72 ] A month later, she initiated another text exchange in order to notify him that she had bacterial infections that, she believed, were the result of her sexual encounters with him. He replied he would also submit to STD testing. [ 73 ] Ms.

A.S. has been quite thorough in her testimony. And she states candidly, in cross-examination, that she is unsure if the second time they had sex was really a rape as she calls the alleged assaults. [ 74 ] This evidence emanating from Ms. A.S. is not very convincing of a sexual assault, certainly not beyond a reasonable doubt. [ 75 ] And the Accused testified. He denies any wrongdoing on his part.

Specifically, he denies there ever was a conversation between the two, about not engaging in sex when she chose to come to his apartment on their first date. [ 76 ] He adds that the kissing was very immediate upon entering the premises. She stood right next and up-close to him despite the roomy surroundings. He believed she would accept if he did kiss her and, she did.

[ 77 ] The Accused corroborates their conversation about the use of condoms and explains she brought up the subject early in their encounter. And they discussed their status with STD. He confirms it was he who suggested anal sex, though he thought it unlikely that she would accept, but she did. And he believes they showered separately and that if she wanted, she could have left in the course of some five minutes it took to do so. [ 78 ] The accused confirms they exchanged text messages the next day by which both parties flirted.

And when she came to his apartment, the day after, he corroborates she wanted to talk. But he claims she wanted to set things straight that she feared he would not want to see her again because they had shared in sex on their very first date, which was unusual for her and she wanted him to know this. He claims he reassured her he was not making judgment. Then, he corroborates, they had more sex. Analysis [ 79 ] In

summary, the disclosure of the events is of utmost importance. It was not until a year after the incidents that she subscribed to any wrongdoing by the Accused. Until then, she had never considered she had been sexually assaulted by the Accused. [ 80 ] Clearly, what prompted this belief, at least in part, is learning that the man she had dated had been suspected and accused of such a crime. Despite what was something of a shock to her, she did not quite believe she had herself been a similar victim.

But others did. [ 81 ] Though others in her circle of friends knew much less than she did about the actual events, about the reciprocal ongoings, they convinced her she had been a victim. They told her so, this was a rape. She believed they were more informed and rallied to their opinion. She laid charges. [ 82 ] This calls for caution. Defense Counsel raises the issue of inadvertent collusion again. In this case, the likelihood of such, is very high despite Ms.

A.S.’s efforts to correctly inform the Court. [ 83 ] Further, the witness admits she felt compelled to do right, not only for herself but to protect others, whom she feared could become victims of this man who in another matter had been suspected and charged. [ 84 ] And she was in disagreement with a judicial ruling on what constitutes consent and she was fueled accordingly. [ 85 ] These factors also call for special caution when assessing the testimony of anyone who harbours an agenda. [ 86 ] Finally, Ms. A.S.’s description of the events in question are quite incomplete and unclear.

Her manner of responding to the Accused’s initiative and to his advances is surprising. She has overlooked, it seems, at least in her testimony, options to stop this behaviour. She, herself, still doubts she was a victim. She has not convinced the Court. This matter will also be dismissed, and Mr. Batchelor will be acquitted. In the matter of A.T. (1990-[...]) [ 87 ] Ms. A.T. is a young teacher and a graduate student in bio-medical science.

In the Spring of 2019, she posted her profile on a social media platform called POF, and came into contact with Paul Batchelor They had numerous text exchanges over a few weeks. [ 88 ] Ms. A.T. agreed to a dinner date. She drove to the selected restaurant in Gatineau. Seeing all went well, she continued to exchange texts with the Accused afterwards. [ 89 ] In the course of this correspondence, she was surprised that Paul Batchelor expressed he wanted to kiss her. There had been no physical contact on their first date.

She, nevertheless, agreed to a second engagement. [ 90 ] It ended up they had coffee one afternoon and a short walk around the premises of the restaurant. She refused that they kiss as the Accused repeatedly asked. She did however agree to give him a hug he asked for before they parted their own way. [ 91 ] They afterwards continued to correspond by way of text exchanges. It appears quite clear throughout exhibit P-1 (from April 22 to May 2 nd , 2019) that amongst other subjects raised, the Accused expressed that he wanted their relation to be more physical.

And, that she responded steadily that she was not ready for that and that she did not wish to feel any pressure coming from him to that purpose. [ 92 ] Evidence demonstrates that she was quite blunt in this matter. And she pointed out she took her time even for a first kiss. [ 93 ] On the other hand, Paul Batchelor was forthright about his interest for having sex with her, from the outset. He was also flattering her and had a way of bringing up related subjects. [ 94 ] A third date was agreed to. They met in a local park and walked throughout the pedestrian and bike trails. [ 95 ] It is Ms.

A.T.’s testimony that he was quite insistent and that she reluctantly gave in and they kissed once, though he sought more to no avail. They exchanged telephone numbers. [ 96 ] Afterwards he remains very straightforward about his desires for sex with Ms. A.T. as is revealed in the transcript P-1. She is obviously reluctant to receive him at home, clearly finding excuses to delay his requests to visit her. [ 97 ] On Friday, they vaguely plan to meet each other on Sunday, for a gym session which helps her manage her stress she says.

But on this Sunday May 5 th , circumstances will have it that the plan doesn’t work out. [ 98 ] The Accused insisted on seeing her the Saturday but she refused. She finally leaves it open-ended that she might accept that he come to her home Sunday, and when he enquires “… does this also mean intimacy?” she replies “maybe”.

[ 99 ] The next day she texts to him that he can come to her parent’s house where she will have her dad’s help in changing her winter tires. They encounter problems and Paul Batchelor is invited to help and to meet her parents. [ 100 ] Later that day they go to her home where she has prepared dinner. She hopes to view a film on television with him. [ 101 ] In testimony she recalls sitting on the living room couch once they had toured the apartment. He soon kisses her multiple times, holding her head between his hands as she moves it back.

He immediately touches her breast, and she removes his hand only to have him insert it into her trousers and he stimulates her clitoris, and she removes his hand. She explains that three times she said “I don’t want” before he finally stops and asks her if she wants him to leave. She responds with a no. [ 102 ] Already she says many things are going through her mind. She feels confused because of what he has just done, during which time he puts his question to her and states he needs for it to be more physical. Yet she knows that her relationship with him is at stake.

She claims all was horrible even though it was very brief, perhaps less than a minute. Yet she was shaken and upset by what occurred and feels she was physically rigid yet acting like a puppet, having lost all control. She knew from then on, there would be sex. [ 103 ] She no longer said no and let things be as they were, uncontrollable for her, “an automatic pilot” running things. She only asked if he would use a condom and he showed her the one he brought and he used it. [ 104 ] He immediately continued to undress her and himself. He led the way to her bedroom, and they did have complete sexual relations.

She claims she remained very inert on her back in bed. Nothing demonstrated consent, no foreplay, no hugs, no caresses, no affection and no expression of desire. She acknowledges she did hold his penis when asked. And, that he never asked for oral sex nor did he use any coercion. [ 105 ] Ms. A.T. testifies she had many times expressed her refusal to his sexual advances, as is corroborated by their text messages. Confronted to one of these exchanges (P-1 at p. 45), she acknowledges she wrote “maybe” when asked if they would share intimacy.

She explains that intimacy does not necessarily rhyme with behaviour that is sexual in her understanding. [ 106 ] It seems that after the sexual intercourse they had very little to say to each other though he did offer a ride to a garage for the problems she encountered relating to the automobile tires. [ 107 ] They did exchange texts. They both wrote they enjoyed their day. She says it was a reference to receiving her community garden plot as she did specify in P-1. And they do write to each other the next day.

When he refers to sex, she states she did not like their last ongoings and does not feel well about it. She writes she prefers they do not see each other anymore. [ 108 ] A few days later, she told a friend she was sexually assaulted. And she tells her sister. Then she visits a community support center for sexual assault victims (CALAS), and she gives a formal statement. From there she went to the police. [ 109 ] In light of this evidence, it is Crown’s position there was no physical expression of consent and that a verbal consent to sexual activities was never given by the Complainant.

On the contrary, there was an explicit refusal in the days leading up to their encounter as well as during the Accused’s wrongdoing. [ 110 ] Further, nothing in Ms A.T.’s conduct in the preceding days to the assault can be interpreted as consent, which is not something that can be scheduled ahead of time. On the contrary she was truly timid and shy according to the Accused himself, in these matters of a sexual nature to the point that she expressed clearly not wanting to even discuss these matters. [ 111 ] Mr.

Paul Batchelor’s version of the events in the days preceding their sexual encounter is not significantly different from the Complainant’s. [ 112 ] One matter is of importance.

In his testimony, the Accused acknowledges she explicitly states she is not in a hurry to have sex (P-1, p. 22) and she would be only in time, she regretfully adds. [ 113 ] In his testimony, the Accused wants to convince that at their walk in the park on April 29 th , 2019, they kissed a lot, and the date went really well, she was different and had changed. [ 114 ] He is however unable to explain that no such change appears in their text messages. On page 30 (of exhibit P-1) on May 1 st , 2019 she reaffirms bluntly she does not want sex and adds further that she does not want to discuss it (on page 31, line 4).

And the days following, she asks him not to put pressure (on page 39, line 4). On page 41 (exhibit P-1), she excuses herself for refusing to even cuddle. This is two days before the alleged assault. And she tells him she does not know him well enough (on p. 43, line 2). It appears clearly that Ms A.T. has not changed and any such proposal by Mr. Paul Batchelor is false. [ 115 ] As he explains it in testimony, that Sunday upon arrival, he visited the premises, they sat on the futon-couch and they chatted about her work as a teacher. He contradicts the Complainant that dinner was in the oven. There was none.

Since it was dinner time, he maintains that he and she spoke of dinner but decided they would have something delivered after sex. The fact is they never had any dinner by both their accounts. [ 116 ] As the Accused explains it in testimony they lay on the futon and kissed. He asked if he could see her wax-bikini hair removal around her pubis. She said yes and nodded! He pulled her panties and leggings down knee-high. He stimulated her vagina while she told him in length about the wax process. He asked her again if all was well and she again nodded. And he offered to leave, and she asked for him to stay.

Shortly after he showed her the condoms and asked for her consent and she nodded again. [ 117 ] He continued by explaining that when she nodded again, he got up and undressed while she lowered her pants further and took them off. She stroked his penis and then he followed her to the bedroom. He corroborates her testimony to the effect that after ejaculation, the condom remained in her vagina. He helped with the situation and about one-half hour later, he left. They texted and he was surprised she ended their brief relationship.

[ 118 ] In light of this evidence, Defense Counsel’s position remains that there was an explicit consent to sexual activities and intercourse by the Complainant throughout the duration of their date of May 5 th , 2019 at her home. The consent was expressed both verbally and by way of her conduct. And the Accused should be believed when he says so. [ 119 ] Counsel points out that the Accused was very much forthright from the outset as it appears from the transcript of their text exchanges (exhibit P-1).

And if the Complainant is found to be truthful by the Court, the Accused would have been misled and it would be a mistaken appreciation of consent. [ 120 ] Defense Counsel believes the couple enjoyed several activities together and he believes there is evolution in the texts that show she opened up to the Accused. Ms. A.T. did not want to jeopardize her relationship with the accused, quite possibly, and asked him to stay when he offered to leave. She may now have regrets, but at the time she did wilfully agree.

Analysis [ 121 ] To counter the incriminating evidence, much emphasis has been placed on two key elements which appear in evidence. [ 122 ] Firstly, when the Accused asked on May 4 th , 2019 if there would be intimacy (exhibit P-1, p. 45 last line) the Complainant responded by “maybe”. [ 123 ] Secondly, when he offered to leave during foreplay, she admittedly said no. [ 124 ] In regards to her response that there might be intimacy, her response is terse. And it is not no, nor yes. It is maybe. And even if it was promising for him, consent could have turned out differently a day or so later.

There is no scheduling consent ahead of time in these matters. [ 125 ] But mostly, intimacy does not necessarily mean carnal relations. It can mean close friendship or familiarity. In responding to such a question, even coming from someone who has been so forthright about his interest, such an answer can logically be as explained by the Complainant. There is no contradiction in her testimony when she explains she did not mean to have a sexual affair for using that term. [ 126 ] And there was an obvious communication problem between the two. Mr. Batchelor calls it himself a language barrier.

It becomes obvious by reviewing exhibit P-1 that her command of the English language remains laborious. [ 127 ] Ms. A.T. has throughout seemed truthful and trustworthy in her testimony. [ 128 ] Her reaction to the Accused’s conduct on May 5 th , 2019, seems quite reasonable. The text transcript reveals that she expressly pointed out to him in the preceding days that she was particularly under stress, because of her work and her volunteer assistance to a community relief program. She explains one of her colleagues and friend was not being re-hired.

She disagreed with this decision and felt a lot of compassion for that person, and deception. [ 129 ] She also confirms to the accused when asked of her shy behaviour and timid interest in sex that she has suffered a bad experience. And she is not ready to talk about it yet. The transcript (p. 32) [ 130 ] And much as if she experienced a premonition she writes to him: “I would not want to find myself in a situation that you have expectations and that I do not want. I do not want to feel stuck” (p. 32).

She is responding to the accused’s question: “Why do you stress about sex?”. [ 131 ] The Accused makes an important point about the fact that he asked Ms. A.T. if he should leave during sexual foreplay and she said no. [ 132 ] In chief he explains that shortly after they sat next to each other on her futon, he asked if he could see the result of the hair removal by wax around her pubis and she agreed. And he stimulated her clitoris. Then he offered to leave, and this is when she said no. [ 133 ] Why offer to leave he was asked. Because he was confused he responds. She said she did not want to be pregnant!

But it is in evidence he had two condoms! And he was finally arriving close to intercourse with her. He had been wanting and asking for such for two weeks. The reason given for his confusion and thereby the reason for asking if he should leave, is unconvincing. [ 134 ] But mostly it is unreliable. In his testimony in chief, he testified she asked him to stay before she expressed any fear of becoming pregnant.

Therefore, there would be no reason for any confusion and no reason to ask such a question, unless he believed she was unwilling to have sex with him and he wanted to exert some pressure on her. [ 135 ] Very importantly when Mr. Paul Batchelor is cross-examined practically three months after giving these details in chief, he claims he asked Ms. A.T. if she wanted him to leave because upon his manual stimulation of her clitoris, she was getting shy to a greater degree, quieter and thinking in her head. She was kissing less. So, for these reasons he asked.

And next thing she said had to do with not being pregnant, he repeats. Necessarily, Mr. Paul Batchelor is not truthful. [ 136 ] Further, Mr. Batchelor’s version of the incidents of May 5 th , requires that one believes him, that after their arrival at home, at the very outset they agreed to have sex and then order “something” from some restaurant. That is the essence of his testimony when he claims that contrary to what the Complainant has testified, there was no meal that had been prepared or was in preparation. [ 137 ] Such a decision or even having a similar conversation is not normally unrealistic.

But in the matter of Ms. A.T., it seems so highly improbable on her part. [ 138 ] Then he would have gotten her permission to lower her pants and underwear in order for him to see the results of the hair

removal around her pubis. She would have accepted that he, fully clothed, as he remained in his testimony, would have as well stimulated her clitoris while she chatted, explaining to him the wax process of hair removal and discussing styles. That is completely unreasonable, coming from an apprehensive person who is very cautious about the matters of sex. [ 139 ] Not only has Ms. A.T. testified at length but the text transcripts are eloquent in characterizing her. Throughout she has remained steadily circumspect about having sex with the Accused.

There has not been any evolution bringing about a change, a more open attitude towards having sexual intercourse with the Accused. The lady suffers “… a lot of anxiety issues” as the accused puts it himself. And he knew she did not want sex with him. She did, not even wish to cuddle with him. [ 140 ] Ms. A.T. was clearly interested in knowing him better though she already appreciated him. She never agreed to anything that was more carnal than kissing.

It is this Court’s belief that she was stunned by the boldness and the gratuity of the initial sex exchanges which occurred unexpectedly without her consent: she was unable to refuse the Accused’s further conduct, being both unwilling to consent and unable to oppose. [ 141 ] Evidence of this is beyond a reasonable doubt. [ 142 ] Paul Batchelor is found guilty of sexually assaulting Ms. A.T. FOR THESE REASONS, THE COURT: DECLARES Paul Batchelor guilty of sexually assaulting Ms. A.T. (1990-[...]); ACQUITS Paul Batchelor on the charge of sexual assault in regard to Ms.

N.F. (1990-[...]); ACQUITS Paul Batchelor on the charge of sexual assault in regard to Ms. A.S. (1998-[...]). __________________________________ RÉAL R. LAPOINTE, J.C.Q. M e Diane Legault Attorney Office of Criminal and Penal Prosecution M e Oliver Abergel Defense Attorney Dates of hearing: 13-01-2021, 14-01-2021, 09-08-2021, 10-08-2021, 11-08-2020, 14-02-2022, 15-02-2022, 29-04-2022, 06-05-2022, 17-06-2022, 23-06-2022.