Her Majesty the Queen - v. -, 2011 SKPC 119

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 119 Date: September 6, 2011 Information: 37252296 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - E.G. Appearing: Mr. Brian Hendrickson For the Crown Mr. Robert C. Fielding For the Accused DECISION M.T. GORDON , J [ 1 ] E.G. is charged as follows: On or about the 26 th day of May, 2010, at or near Moose Jaw, Saskatchewan, did commit a sexual assault on S.N., contrary to

section 271 of the Criminal Code . [ 2 ] The Crown elected to proceed summarily.

Evidence [ 3 ] E.G. and S.N. have known each other since kindergarten. They are good friends and have common interests. They went to the same school and both attended the University of Regina. They kept in touch, often by text messaging. It was not unusual for them to watch movies together at S.N.’s home. Their mothers were good friends. [ 4 ] On May 26, 2010, after midnight, E.G. was invited by S.N. to watch a movie at her house. Both of these young persons were sober and not consuming alcohol or drugs. [ 5 ] S.N. testified that earlier in the day she and E.G. were texting each other.

He had sent a text “do you want to make out”. She had replied “no, just friends, no feelings like that.” [ 6 ] They chatted and then agreed on a movie to watch. Both were on S.N.’s single bed in her bedroom in the basement of the family home. S.N.’s parents were sleeping upstairs. [ 7 ] E.G. testified he was invited over to S.N.’s and arrived around 1:30 a.m. She complained about her day and then they selected a movie to watch. They were on the single bed in her bedroom and soon were laying side by side. E.G. testified his right arm was under S.N. and his left arm was around her stomach. She put her hand on top.

At some point, E.G. admits to moving his hand fondling S.N.’s breasts. She was making pleasurable sounds so he continued on and unhooked her bra. He stated he thought he was “clear to proceed”. He noticed she was asleep and he tried to wake her up. [ 8 ] S.N. testified she was laying on her right side in a fetal position and fell asleep. At that time E.G. was at the foot of the bed. She woke up, laying on her back. E.G. had his hand in her vagina. Her bra was on the floor beside the bed. Her clothing was all twisted. She testified that E.G. pretended he was sleeping.

She said to him “you need to get out of my house now”. She did not agree to this activity. At that moment, according to S.N., E.G. said “sorry” and she told him to “leave now”. [ 9 ] They went upstairs and E.G. left. S.N. sent a text to her best friend saying she was coming to talk to her. The next night she told her mother about the incident.

On May 28, 2010, she saw her family doctor who referred her to Mental Health for counselling. [ 10 ] Since the incident there has been no contact with the accused. [ 11 ] On cross-examination, counsel was allowed to ask some limited questions about S.N.’s previous sexual relations with E.G. This preliminary ruling is found in an unreported decision dated February 23, 2011. [ 12 ] S.N. denies all suggestions of any previous encounters with E.G. of a sexual nature.

In particular, she denied the following: – any fondling and kissing in Grade 11 – 2009 sexual intercourse with E.G. – Grade 12 sexual intercourse – one month prior to Grade 12 - no fondling [ 13 ] She admitted that in Grade 9 she kissed E.G. in the same way as she would kiss her brother.

[ 14 ] S.N. admitted that she and E.G. had cuddled on the couch in the basement and watched T.V. and listened to music. He would have his hand around her shoulder. [ 15 ] S.N. repeated that before E.G. came over, she responded to his text message by stating she was not interested in sexual relations. She did not take his suggestion seriously. [ 16 ] S.N. stated the two front straps of her bra were undone. She did not take her bra off herself. [ 17 ] E.G. testified that the text he had sent S.N. earlier suggesting “making out” was a joke.

He sent this text to a lot of friends. [ 18 ] E.G. testified that about one month prior they were cuddling and kissing late one evening while watching a movie. S.N. got sick and threw up. [ 19 ] E.G. testified that in the summer of 2009 they had kissed and fondled and S.N. touched his penis. When they were in Grade 12 in similar circumstances, being watching a movie late at night, they had consensual sex. [ 20 ] On this evening, he believed she was consenting and enjoying having her breasts fondled. He unfastened her bra and pulled one arm through the strap that became unhooked.

She offered no resistance and he believed she was consenting. [ 21 ] At that point S.N. woke up and said it was late, her Dad was getting up soon and she didn’t want to wake him. The two of them went upstairs, hugged and agreed to talk soon. He was shocked when the police came to his home. On cross-examination, E.G. admitted that S.N. only said to whisper. He assumed it was because her Dad was getting up early. [ 22 ] On cross-examination E.G. admitted when he went to S.N.’s there was no intention to have sex. He admitted to sending these text messages about wanting to make out to several friends.

E.G. cannot recall in detail any conversation, or the exact positioning of S.N. and him on the bed. [ 23 ] E.G. admitted that he started fondling and touching her breasts, undoing her bra and pulling one arm through the strap. E.G. noticed S.N.’s arm was limp so he kissed her on the cheek a couple of times to see if she was truly asleep. There was no response. Submissions by Defence Counsel [ 24 ] The Defence submitted that E.G. honestly believed he had S.N.’s consent to touch and fondle her breasts that night. E.G. denies he had his hand in her vagina.

The basis of his belief was that they had cuddled, kissed and had sex on other occasions. In addition, S.N. on this occasion, did not object to him lying down next to her, putting his arm around her, unfastening her bra and fondling her breasts. He testified she made moaning noises that he interpreted as a sign of interest and consent; to go ahead. [ 25 ] When he tried to pull her arm through her bra strap, he noticed her arm was limp and concluded she may be asleep. After kissing her on the cheek a couple of times he concluded she was indeed asleep.

E.G. stopped when he realized she was not responding. [ 26 ] Neither can explain how her bra ended up on the floor. It is suggested reasonable inference would be that she was initially cooperating with his advances.

[ 27 ] The Defence submitted that these two have been alone many times in the past late at night watching T.V. Often, in such circumstances, the couple’s actions had progressed further and they have been intimate. [ 28 ] E.G. cannot explain why S.N. was so upset this time. [ 29 ] The Defence submitted that E.G.’s testimony represented his conclusions as to what had occurred that evening. He was not trying to mislead or lie to the Court. E.G. interpreted certain things S.N. had said and related his conclusion to the Court. He was not quoting S.N.

E.G., based on what S.N. had said, formed the impression that her parents did not want him there. [ 30 ] The Defence pointed out that testifying for anyone is difficult, especially for an accused who must try to recreate and recall in some detail, events that took place some time prior. [ 31 ] The Defence suggested that E.G., a quiet spoken, young man, did his best testifying as to the events of this occasion. It was suggested that in fact E.G. provided a more detailed description of the room, furniture and people.

The fact that he could not describe how S.N. moved is of no consequence. [ 32 ] In conclusion, the Defence argued that using the W.D . analysis, I must acquit. Submissions by Crown Counsel [ 33 ] The Crown acknowledged, as always, the burden is on the Crown to prove its case beyond a reasonable doubt. [ 34 ] In most assaults of a sexual nature, there are not independent witnesses. The Crown submitted that S.N. gave her evidence in a clear, straightforward manner.

The detail she provided including the positioning of the bodies makes more sense than the description by E.G. [ 35 ] S.N. testified that she had known E.G. for 15 years, they were friends, not a couple, and up until this point there was no bad blood between the two. In addition, their mothers were friends. [ 36 ] The Crown noted that S.N. denied any sexual relations in the past.

When E.G. sent her a text that day asking if she “wanted to make out” she emphatically declined. [ 37 ] There is no reason she would fabricate a story and go through all the steps in making a complaint, being interviewed, seeing the doctor, counselling and finally testifying. [ 38 ] Finally, the Crown argued that E.G., by admitting in his evidence he lied to the Court, taints his entire testimony. This is especially important when conducting a W.D . analysis. The Crown asked the Court to reject the accused’s evidence and find the accused guilty as charged.

Analysis [ 39 ] The offence of sexual assault is comprised of an assault within the

definitions stated in s. 265, which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.

[40] In R. v. Ewanchuk (1999), (SCC), 131 C.C.C. (3d) 481, the Supreme Court of Canada outlined thecomponents of sexual assault at paragraph 23: A conviction of sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intention totouch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [41] The Crown must prove that a sexual assault has taken place and that the accused intended to commit the act. Lack of consentis an element of both the actus reus and mens rea. If the activity was consensual, there was no unwanted sexual contact. If the accusedbelieved the activity was consensual, he lacked the mental element for sexual assault. [42] In R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, Major J. at paragraph 25 said this: The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and (iii)the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actionswere voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens reawith respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333 and R. v.Chase, (SCC), [1987] 2 S.C.R. 293.

And, at paragraph 26, referring to the third element, stated: The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred: see R. v. Jenson (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), atpp. 437-38, aff’d (SCC), [1997] 1 S.C.R. 304, R. v. Park, (SCC), [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dube J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. [43] Consent must be freely given. The complainant testified that she did not want to be touched.

She refused the earliersuggestion in the text message from E.G. in no uncertain terms. It was not unusual for these two friends to watch television or a movie,alone, in her bedroom. There is nothing in the evidence to indicate that she changed her mind. In my view, it is a reasonable inferencethat over the years a certain amount of trust had developed between these two friends. They were not a couple. I accept thecomplainant’s evidence that she did not want to be touched and thus lack of consent has been established. [44] With respect to the mens rea of the offence, sexual assault is a crime of general intent.

The accused admitted he intended totouch the complainant in a sexual manner. The accused testified he interpreted her moaning sounds indicating her enjoyment, andtherefore her consent. He says he met with no resistance. The accused says he thought it was clear for him to proceed. However, theaccused also testified that he noticed she was asleep and tried to wake her up. He put his hand on her stomach and she put her hand onhis hand. E.G. testified that one month prior they had been cuddling and kissing. In the summer of 2009, they had also cuddled, kissedand she had touched his penis.

When they were in Grade 12 they had sex while watching a movie at the complainant’s house. [45] On May 26, 2010, the accused denies he proceeded any further than touching her breasts. He claimed he fell asleep and thecomplainant woke him up and told him her Dad was getting up early so he better be quiet and leave. [46] The complainant denied consenting on this occasion. She also denied having sex on a previous occasion. [47] In R. v. Ewanchuk, supra, the Court comments on the common law defence of mistake of fact. The Court at paragraph 43quotes R. v.

Pappajohn, [1980] 2 S.C.R. at paragraph 148, by Dickson J. (as he then was) (dissenting in the result):

Mistake is a defence...where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of the offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused.

The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts. [ 48 ] The Court in R. v. Ewanchuk , supra, further elaborates on this defence at paragraph 45 to paragraph 49 as follows: 45 As with the actus reus of the offence, consent is an integral component of the mens rea , only this time it is considered from the perspective of the accused.

Speaking of the mens rea of sexual assault in Park , supra , at para. 39 , L'Heureux-Dubé J. (in her concurring reasons) stated that: . . . the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes ". 46 In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question.

A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence. 47 For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law: 273.1

(1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. 48 There is a difference in the concept of "consent" as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea .

For the purposes of the actus reus , "consent" means that the complainant in her mind wanted the sexual touching to take place. 49 In the context of mens rea - specifically for the purposes of the honest but mistaken belief in consent - "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate. [ 49 ]

Section 273.1 of the Criminal Code limits consent.

Section 273.2 of the Code reads as follows: 273.2 It is not a defence to a charge under

section 271 , 272, or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

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

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

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [ 50 ] The accused clearly took advantage of the situation, and has rationalized his behaviour.

Section 273.2 enumerates the situations where belief in consent is not a defence. Here, I find that the accused was reckless or wilfully blind. The accused intended to touch the complainant and then thought it was clear to proceed. The accused did not take reasonable steps in all of the circumstances to ascertain whether the complainant was consenting. [ 51 ] In argument, both counsel suggested that the issue for the Court is one of credibility.

[52] Therefore, I will now consider all of the evidence, following the principles set out in R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.), often referred to as the R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397(S.C.C.) analysis. The complainant says she woke up and the accused had his fingers in her vagina. Her bra was on the floor beside thebed. The accused admits to undoing her bra and pulling the strap off one arm. He admits to fondling her breasts but claims he stopped atthat point, as he concluded she was asleep. [53] In the textbook Canadian Criminal Evidence, 2nd Edition, the author P.R.

McWilliams, Q.C., comments on the issue ofassessing the evidence at page 1082 as follows: Even so, the ultimate question to be decided is not which side was telling the truth but rather, on all the evidence, whether the case hasbeen proved beyond a reasonable doubt. If the evidence of the defence witnesses might reasonably be true (and, if true affords adefence), then the charge has not been proved: R. v. Nykiforuk (1946), (SK CA), 86 C.C.C. 151 (Sask. C.A.). [54] On the whole of the evidence, I find the evidence of the complainant to be preferred.

I disbelieve the evidence of the accusedwhere it varies from that of the complainant. Defence counsel argued that the accused had a better description of the situation includingthe position of himself and the complainant to the events that unfolded. However, that is not determinative of the situation. On cross-examination the accused stated he lied to the Court, but then explains that this was an assumption he made and he was not suggesting thatthese exact words were spoken. I accept his explanation. However, in my view, this shows the problem of the accused’s description ofevents.

He made wrong assumptions, and after the fact he is trying to recreate the situation and put his actions in the best light. He isrationalizing his actions. He admitted that the complainant seemed upset so he said “sorry” which in his evidence referred to the fallingasleep. I do not accept or believe this explanation that he thought what he was doing was with consent. The evidence as a wholesuggests the opposite. [55] The complainant saw things differently. She admitted to knowing E.G. for the past 15 years. She says they were friends onlyand denies ever having sex with him.

I find her evidence to be straightforward, clear and concise. Her description of the position ofherself and the accused on the bed makes sense. There was no ill will between the parties. She had clearly responded to his text earlierin the day, saying there was no way she wanted to make out. The accused says this was just a joke. If so, then that substantiates thecomplainant’s evidence that they were friends and had not engaged in any sexual contact. The Defence argues that the two of them werea young couple who were intimate with each other on previous occasions, as well as this occasion.

The Defence states that is whatyoung couples do and it is by consent. That may very well be true, but I do not accept that these two were a “couple”. They werefriends. As the accused said, she would complain about her day to him and they watched T.V. together. [56] The accused’s testimony, in my view, does not afford him a defence. The accused’s belief that he had consent is notreasonable. The accused’s belief that he had consent was more wishful thinking or rationalization on his part.

Silence, or, in its bestlight, ambiguous consent (her moaning), is not consent. [57] The accused stated he thought she was asleep. This is not sufficient for consent. The accused admitted that earlier in the dayhe had sent a text to the complainant asking if she wanted to make out. The complainant replied in the negative, and that they were justfriends. It does not matter that E.G. sent this text to other friends. It is clear that the complainant was unequivocal in her response. [58] In my mind, whether these two were intimate or had sex on a previous occasion is not particularly relevant to this occasion.

The text earlier in the day does not make sense in relation to the accused’s submissions. Why would the accused send such a text, andthen in his evidence say it was just a joke. As well, the complainant made it abundantly clear in her response to the text that she was notinterested at all. [59] There is no credible evidence that I accept to indicate the complainant changed her mind. Applying s. 273.2(

b) to thesituation, especially her earlier refusal, I conclude that E.G. did not take reasonable steps to ascertain if she was consenting. In my view,he assumed and hoped it was “clear to proceed”. [60] The onus remains on the Crown throughout. The Crown has met this onus. There is no credible evidence that the complainant changed her mind and consented to having sex with the accused. I do not have a reasonable

doubt. E.G. is guilty as charged. Dated at Moose Jaw, Saskatchewan, this 6 th day of September, 2011. _____________________________________ M.T. Gordon, J