R. v. A.V., 2020 ONCJ 315

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. CITATION: R. v. A.V., 2020 ONCJ 315 DATE: July 9, 2020 COURT FILE No: 19-Y092 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN -AND- A.V.

Before Justice Michael G. March Heard on Dec. 19, 2019, Jan. 7, 2020 & Feb. 6, 2020 Reasons for Judgment released July 9, 2020 Richard Morris………………………………………………………… Counsel for the Crown Paul Lewandowski…………………………………………………… Counsel for the Accused March, M.G., J. : Introduction 1 . A.V., a young person within the meaning of the Youth Criminal Justice Act , stands charged that:

a) on March 17, 2017, and

b) between June 1 and 30, 2017, he committed sexual assaults on B.B. contrary to

section 271 of the Criminal Code of Canada . 2 . At the time these incidents were alleged to have occurred, A.V. was 14 years of age. B.B. was 13. They were in the same grade, but at different schools. 3 . A.V. and B.B. met through a mutual friend. Their relationship began with hanging out and talking at a skating rink in January 2017. 4 . A.V. was an accomplished hockey player. B.B. was a talented figure skater. 5 . A.V. and B.B. began to text and “Snapchat” one another with some frequency. By February 10, 2017, A.V. asked B.B. to be his girlfriend. She accepted. 6 .

Occasionally, they visited each other at their parents’ homes with A.V. spending slightly more time at B.B.’s house. 7 . By the last couple of weeks of August 2017, the relationship had ended. The Relevant Evidence 8 . B.B. testified that on two distinct occasions, A.V. engaged in sexual activity with her, but without her consent. 9 . The first occasion was on March 17, 2017 in her home. 10 . The second incident B.B. placed during the month of June 2017 at a Tim Horton’s restaurant. St. Patrick’s Day 2017 11 . B.B. recalled being away with her family before returning on March 17, 2017.

She was with her mother and her sister, S.B. They arrived home somewhere between 4 and 6 PM. 12 . Her mother went curling at approximately 8 PM. At that time, B.B.’s sister, S.B., was in her room listening to music. S.B. was 15 at the time. 13 . B.B. did not mention that her sister was listening to music when she gave her statement to the police. Nor that her sister’s door was closed. 14 . In relation to B.B.’s room, S.B.’s room is 5 to 10 steps away.

15 . B.B. got into her pajamas in her room. She was texting with A.V. She was lying in her bed and watching a movie. 16 . A.V. asked if he could come over. B.B. did not want him to. She said she was scared if she refused. Still, she texted her mother to obtain permission. Her mother granted it after verifying her older daughter, S.B., was home too. 17 . B.B. had not seen A.V. in two weeks. She estimated that A.V. arrived at her home around 9 PM. 18 . B.B. explained that she was not allowed to hang out with anybody past 11 PM. She expected A.V. to leave by 10:30 PM. 19 .

When A.V. came up to B.B.’s room, he sat at the foot of her bed. She was at the head. 20 . A.V. wanted her to move closer. He wished to ask her a serious question. It was, “Do you want to have sex with me?” 21 . B.B. testified that she was surprised by the question. She told him, “No. I don’t want to do that.” 22 . B.B.’s evidence was that A.V. was undeterred. He said, “Come on, please, let me.” He tried to touch her body by putting his hands up her shirt. He tried to grab her breasts. He tried to kiss her neck. He struggled to take off her shirt.

She would not allow this to happen, she said, because she was too self-conscious. 23 . B.B. repeatedly told him no. 24 . The unwanted touching and attempts at removing her clothing went on for approximately 10 minutes according to B.B. 25 . Next, A.V. wrapped his arms in a bear hug manner around B.B. He tried to take her pants off, but he was not able to remove them completely. 26 . Underneath her pajamas, B.B. explained that she was wearing a sports bra and underwear. Her pajama bottoms had an elastic waistband that could tie, but they were not tied that night. 27 .

B.B. related that A.V. forced her down onto him putting his arms around her rib cage as tightly as he could. 28 . Their bodies faced each other, but their faces were turned away from one another. 29 . At the outset, B.B. tried to stand to get away, but A.V. pulled her down onto him. 30 . A.V. was able to pull his pants down just enough to put himself inside her. He was holding her and undoing his pants simultaneously. 31 . B.B. stated that she felt very suicidal. She just wanted to die. Then everything went black for her. She began bawling. She kept saying no as he started to penetrate her. It hurt.

Then she just did not remember anything. 32 . She felt as though she had fainted from shock. The last thing she remembered was sobbing and telling him no. 33 . Following her black out she recalled him pushing her off. She was still sobbing. He went into the bathroom to clean up. 34 . B.B. was not sure if A.V. ejaculated, but she thought he had. She was not sure if he had used a condom. She did not see one. She denied providing him with one, or having retrieved one from her nearby night table. 35 . Equally, she disagreed that there was ever any discussion between them prior to St.

Patrick’s Day 2017 about having sex. 36 . According to B.B., there was no foreplay prior to the sexual intercourse. Nor did she straddle A.V. to allow it to happen. Indeed, she vehemently denied that she voluntarily got on top of A.V. He held her by her back and rib cage to force her down on him, she asserted. He gripped her so tightly she could not really breathe. Within a matter of seconds, she blacked out. 37 . When she came to, A.V. pushed her off him. B.B. pulled her pants up quickly after A.V. left the room. She related that she did not really feel anything. 38 . Upon his return, she told him to get out.

She said he looked shocked. 39 . She stayed in her room. She did not text anyone about the incident. 40 . She never discussed the incident with A.V. afterward. She never confronted him about what happened by text either. 41 . However, after two to three weeks, she did continue to invite him over to her house, and to visit with him at his place, just not as often. 42 . B.B. explained that she was scared to break up with A.V. He was aggressive with her. She felt almost in danger that he would hurt her. There had been times when he pushed her in an amicable way early on, but later, not so much so.

There had also been friendly slaps. 43 . When asked about her relationship ending near the end of August 2017, B.B. remarked that A.V. cheated on her with “multiple different girls,” so she had finally had enough. 44 . In assessing the duration of her relationship with A.V., B.B. could see nothing good in it. She felt cheated on and used. She was happy to break up with him.

45 . When asked if she was scared to leave the relationship upon finding proof of his cheating on his cellphone, B.B. clarified that it gave her an excuse to leave. 46 . She agreed she had accused him of cheating numerous times. The accusations started virtually from the outset of their relationship. 47 . B.B. did not tell her sister what happened to her after A.V. left their home on March 17, 2017. Nor did she tell one of her best friends, C.M. B.B. first told someone about what A.V. did to her sexually without her consent in October 2018. 48 .

B.B. testified that she fell into a deep depression following A.V.’s sexual assault upon her. She did not want to speak to anybody. She did not want to move. 49 . When B.B. broke up with A.V., she did so by text. She mentioned his cheating. She did not confront him about raping her. 50 . B.B.’s sister, S.B., remarked that B.B. has never been the same since St. Patrick’s Day 2017. In the evening hours of March 17, 2017, S.B. put herself watching TV in the living room of the home she shared with her mother and sister. 51 . S.B. was sitting on the couch when A.V. walked right in to her house.

She did not know the exact time he arrived. He had a bag with him. He then went straight up to B.B.’s room. S.B. heard the door close. 52 . S.B. confirmed that her room is right beside B.B.’s. 53 . It was not the first time that S.B. had met A.V. However, she had not known him a long time. 54 . S.B. heard A.V. and her sister talking. S.B. could not make out what they were saying. It was just mumbling. S.B. could discern their tones of voice. She did not know how long the talking went on for. She did not hear anything suspicious, but she was not really paying attention. 55 . S.B. believed her mother was not home.

She was at work. 56 . The only other time S.B. saw A.V. again that night was when he went running down the stairs and out the door, as if he were in a rush. She did not talk to him while he was there. She did not know the exact time he left. 57 . Atypically, B.B. stayed in her room after A.V. left. 58 . B.B. did not talk to S.B. for a couple of weeks thereafter. B.B. would go straight to her room after school and close her door. The sisters did not interact at school either. At the time, they did not have a close relationship. 59 .

S.B. commented that her sister, B.B., and A.V. would spend a lot of time together in B.B.’s room. 60 . S.B. did not know if A.V. had been to visit B.B. in their home in the days preceding or following St. Patrick’s Day 2017. S.B. could not recall any other times when A.V. came over. 61 . The last time S.B. saw A.V. was in June 2017 at his home. 62 . S.B. was unsure of any rules that applied to having boys in the home, only that B.B. was to have their mother’s permission to have them there. 63 . S.B. did not consider it her role to babysit or chaperone her sister, B.B. 64 .

S.B. first became aware of an incident occurring between A.V. and B.B. when a female police officer came to take a statement from her. Even after that, S.B. and B.B. did not speak about what had happened. 65 . S.B. never talked to B.B. either about any encounter B.B. had with A.V. at Tim Horton’s. 66 . A.V. testified that he lost his virginity on St. Patrick’s Day 2017 at B.B.’s house. B.B. and he were boyfriend and girlfriend at the time. 67 . B.B. invited A.V. over, which was not unusual.

Their relationship, according to A.V.’s recollection, commenced around the time of the Christmas break of December 2016 to January 2017. 68 . B.B. and S.B. were present when A.V. arrived on March 17, 2017. B.B. and he went up to her room like normal. 69 . B.B. and A.V. were just hanging out, cuddling and kissing. She then jumped on top of him. 70 . They started to take each other’s clothes off. A.V. specifically recalled that B.B. took his shirt off. 71 . They were kissing each other’s necks. She would pull him toward her and continued to kiss him. 72 .

They had spoken over social media before about having sex. 73 . B.B. grabbed a condom off her nightstand. She provided it to A.V. She had him put it on. 74 . A.V. then took B.B.’s pants off. He asked if she was ready. She said, “Yeah, as ready as you are.” 75 . They proceeded to have sexual intercourse. B.B. got on top of A.V. He denied ever holding her down onto his body, or forcing

his penis inside her. 76 . B.B. began moving her hips in a back and forth manner. 77 . A.V. denied that B.B. told him to stop, expressed any disagreement to the activity by word or gesture, or attempted to get off him. By A.V.’s estimate, the sexual intercourse lasted approximately 20 minutes. 78 . At or near its conclusion, A.V. told B.B., “I came.” 79 . They threw the condom in the garbage. 80 . They laid in her bed for a bit. An hour or so later, A.V. received a text from his parents to indicate they were coming to pick him up. 81 . A.V. maintained that he simply went home on St.

Patrick’s Day 2017 without incident. 82 . He explained that if he wished to go to a friend’s house, his parents would drive him there. They would then want to know when he would like to be picked up. Alternatively, they would tell him when they would want him home. Quite often, he went to B. B.’s home when her mother was not there. 83 . On March 17, 2017, A.V. specifically remembered that his parents drove him to B.B.’s house. They wanted him home in two hours. 84 . As far as he could tell, his parents were content with S. B., B. B.’s sister, who was 15 years old at the time, supervising them. 85 .

In contrast, A.V.’s parents would not permit him to have guests in their home if they were not there. 86 . To A.V.’s knowledge, his parents had never met B.B.’s mother. He tried once to introduce his mother to B.B.’s., but B.B. told him her mother was not in the mood to meet someone. 87 . He recounted that B.B. and he made no plans to have sexual intercourse on March 17, 2017, although they had talked about it for a while over social media in a joking manner. B.B. found out that a bunch of her friends were having sex. That is how the conversation about it started. 88 .

As their relationship developed, they decided, “Maybe it’s time”. 89 . In A.V.’s view, it was a mutual decision to engage in sexual activity on St. Patrick’s Day 2017. He was in the mood. She was too. He denied pressuring B.B. into sex with him. 90 . A.V. agreed that he was interested in having sex, but he was not prepared to rush into anything with her. There was nothing special about March 17, 2017 as a projected date it was to occur. He maintained though that there had been previous discussion of the subject over Snapchat. As a means of communication, Snapchat was the preferred mode for people their age. 91 .

A.V. declared that B.B. was not being truthful when she testified that she did not know whether there was a condom involved or not. He was adamant that she was an active participant while having sexual intercourse with him. 92 . A.V. testified that he was not aware that B.B. would have a condom when he arrived at her house. He did not know if she retrieved it from the bedside table or shelf. He did not see it when he walked into her room. In A.V.’s words, “It takes two people to make a full decision like that, but we both decided mutually, yes, to go a bit further.” 93 .

He denied that he was aware of any rules at B.B.’s house. Specifically, he denied knowledge of any prohibition on B.B.’s bedroom door being closed if he was in the room with her. He simply required an invitation to be there no matter the night of the week. 94 . Indeed, A.V. had not even met B. B.’s mother until after St. Patrick’s Day 2017. His parents were aware of that fact as well, he asserted. 95 . A.V. vehemently denied allowing his own desires to override any lack of willingness on the part of B.B. to engage in sexual activity with him. He disagreed as well that he went to the bathroom after it was over.

Instead, they laid and cuddled for a while. They talked later that night about what had occurred over Snapchat. 96 . B.B. walked A.V. to the door when it was time for him to leave. She hugged and kissed him. S.B. was present to see this. 97 . He did not really think about what would happen if B.B.’s mother found the condom while throwing out the garbage in B.B.’s room. He did not expect B.B.’s mother to look through it. The garbage was located approximately 6 feet from the bed. 98 .

A.V. agreed that they did not tell B.B.’s mother about what had occurred, because B.B. had always told him her mother would be angered if they did. 99 . B.B. was more concerned from A.V.’s perspective that if anyone found out, she would get the “stereotype” at school of being known as a “whore”. 100 . A.V. denied that B.B. was distant after they had sex. They kept hanging out together. He noticed no difference in their relationship. 101 . It was not until August 2017 when:

a) she saw the photos of other girls on his phone, and

b) he grew angry with her for showing interest in his best friend that he noticed a difference in their relationship. Tim Horton’s Encounter – Summer 2017 102 . B.B. could not remember the actual date when she was touched in an untoward manner by A.V. at a Tim Horton’s restaurant. B.B. agreed that there were other occasions, perhaps once or twice, but not many, when she had been in a booth with A.V. at Tim Horton’s. 103 . She did recall that it occurred in the summertime. School had been out for a week. 104 . It was, of course, before the relationship between A.V. and her had ended. 105 .

Earlier in the evening, B.B. was at home with her friend, C.M. B.B. and C.M. walked to Tim Horton’s while waiting to be picked up by C.M.’s parents. 106 . B.B. intended to have a sleepover at C.M.’s place. 107 . B.B. recounted that it was approximately 12:50 AM before she walked into the restaurant. She opened the pocket of her skating jacket. She took out her cell phone to check the time. She put the phone back in her pocket and zipped it up. 108 . A.V. was at the Tim Horton’s when B.B. and C.M. arrived. He was standing in line at the counter. A.V. and B.B. were still in a relationship.

Their meeting at the restaurant was not pre-arranged. All three ordered drinks. 109 . Given the late hour, B.B. believed there was only one other man in the restaurant. 110 . B.B., C.M. and A.V. sat at a booth together. B.B. asked A.V. about what he had been doing earlier in the evening. A.V. reciprocated with a similar type question. A.V. kissed B.B. on the cheek. 111 . C.M. had to go to the bathroom. B.B. and A.V. remained seated at the booth. 112 . While C.M. was away, A.V. tried to pull B.B. on top of him. Immediately beforehand, B.B. checked her phone again. It was 12:51 AM.

In her initial statement to the police, B.B. mentioned as well that it was 12:51 AM before A.B. grabbed her. 113 . B.B. conceded though that it could well have been 12:45 AM when she entered the restaurant. 114 . B.B. testified that A.V. next tried to put his hand under her shirt to feel her breasts. He succeeded in touching them. She kept pulling his hand down. She resisted and struggled. She told him it was not happening. He was trying to pull her pants down. 115 . A.V. was pleading with B.B. to let him do it. 116 . B.B. was fighting A.V. off. She told him no. She repeatedly stated she was not doing that. 117 .

B.B. ended up sitting on him. Both his feet and legs were on the booth with his back leaning against the wall separating them from view at the counter area. 118 . A.V. tried to put his penis in B.B.’s vagina. Her pants were halfway down her buttocks. According to B.B., he was really trying to pull them down constantly while she pulled them back up. He got no further. 119 . B.B. fought her way off A.V.’s lap. She pulled her pants up. She stood up. 120 . B.B. believed that C.M., as she was coming out of the bathroom, saw her struggling and getting up. 121 .

B.B. asked C.M., “Do you want to leave?” C.M. agreed to go immediately with her. Both young women grabbed their drinks and said goodbye to A.V. 122 . As B.B. and C.M. were walking back to B.B.’s house, B.B. told C.M. what had just happened in the booth. B.B. specified that A.V. tried to put himself inside her. B.B. explained it to C.M. more like a sexual assault. 123 . However, B.B. did not tell C.M. about the earlier sexual assault on St. Patrick’s Day. She explained that it was hard to tell somebody, especially a good friend, about something so traumatic that had happened to her. 124 .

For some time, B.B. did not tell anyone else about the Tim Horton’s incident other than C.M. B.B. denied that she told C.M. to indicate to police that it was 12:50 AM when the event occurred. 125 . B.B. changed her sleepover plan while walking home with C.M. C.M. texted her parents to say that she would just stay at B.B.’s place. B.B. just wanted to sleep. She was trying to process what had happened. 126 . She confirmed that her mother knew she was leaving her home to go to C.M.’s for a sleepover. 127 .

B.B. explained that it was easier for C.M.’s parents to pick them up at Tim Horton’s than to drive throughout the whole town.

128 . B.B. and C.M. left B.B.’s house at 12:30 AM to walk 15 or 20 minutes to get to Tim Horton’s. Both B.B. and C.M. were 13 years old at the time. 129 . When they arrived at the restaurant, A.V. just happened to be there. B.B. denied arranging a meeting with him. She recalled she had not been on her cell phone for a few hours before they left for Tim Horton’s. 130 . B.B. denied checking Instagram to see if A.V. might be at Tim Horton’s that night in June 2017. 131 . B.B. agreed that she spent most of the summer thereafter hanging out with A.V.

There were times over the course of that period when she did get angry, disappointed and saddened with A.V. for showing interest in other girls. 132 . For her part, C.M. stated that she only knew A.V. “a little bit”. She had a much closer relationship with B.B. Although at the time of testifying on December 19, 2019, their relationship was “not the greatest”. 133 . C.M. recalled an incident involving B.B. and A.V., which occurred at Tim Horton’s near the end of the summer of 2017. 134 . C.M. believed it happened on a school day when they were in grade 8 and had classes together.

B.B. and she were spending time together earlier in the day. They planned to hang out afterwards. When school ended, they went to B.B.’s house. 135 . The two young women stayed there the whole evening until they went to Tim Horton’s. The restaurant was roughly a 20 minute walk from B.B.’s home. 136 . C.M. conceded she did not have a clear memory of the particulars of the incident. 137 . C.M. was pretty sure that they met A.V. outside the Tim Horton’s. They all went in together. They then sat down at a booth for roughly 10 minutes. C.M. was playing on her phone.

She thought all she ever said to A.V. was “Hi”. 138 . C.M. went to the bathroom. She was there for approximately five minutes. When she came out, B.B. came over to her near the bathroom. B.B. told her that she had just been inappropriately touched. B.B. told her that A.V. tried to rape her. He was still at the booth when B.B. told C.M. what had happened. 139 . C.M. recalled that the booth was quite a distance from the bathroom, perhaps 100 feet. 140 . She just remembered leaving after that with B.B. They walked back to B.B.’s house. The plan had been to go to C.M.’s place.

One of C.M.’s parents was to pick them up. C.M. decided however to stay at B.B.’s place, because B.B. no longer wanted to go to C.M.’s. 141 . C.M. was shocked. She didn’t really say anything, or even know what to say. 142 . C.M. believed that B.B. and she arrived at the Tim Horton’s around 12:20 AM. Later, C.M. conceded that she had no recollection of the actual time they got to the restaurant. A.V. was the only person they knew there. 143 . C.M. did tell her parents about what had occurred. 144 . She admitted that she was a reluctant witness, who did not wish to testify.

Her relationship with B.B. had become strained. The situation was stressful for C.M. 145 . C.M. confirmed that B.B. had contacted her about a year and a half prior to C.M. testifying. B.B. asked C.M. to be supportive of B.B.’s decision to go forward to police with the complaint about A.V. 146 . B.B. did not tell C.M. what to say to police. However, C.M. could not remember what B.B. told her. 147 . Prior to this request, C.M. had not thought about the Tim Horton’s incident for a year or so. 148 . She could not be sure when the incident at Tim Horton’s happened. 149 .

C.M. did not know whether A.V. was supposed to be at the restaurant when B.B. and she arrived. She thought B.B. expected to see him there. C.M. believed that B.B. and A.V. planned to meet that night, although she could not provide any basis for that belief. 150 . C.M. agreed that B.B. appeared happy on the way to Tim Horton’s to be in a relationship with A.V. 151 . C.M. conceded she could not remember a single thing that was discussed amongst the three at the Tim Horton’s aside from saying a quick hello to A.V. Additionally, she could not recall if they ordered any food or drink. 152 .

C.M. confirmed that she did not see anything that occurred as between B.B. and A.V. when she went to the bathroom and came back out. B.B. approached her to tell her what had occurred. 153 . C.M. did recollect that B.B. related to her that A.V. tried to pull up her shirt. C.M. thought that B.B. added that A.V. tried to take down her pants. 154 . C.M. did not know if B.B. ever told her why she broke up with A.V., but C.M. assumed it was over the Tim Horton’s incident. C.M. testified that she did advise B.B. to break up with A.V. Then she denied saying she did.

Later, she stated she could not remember if she did. 155 . C.M. could not remember if B.B. and she spoke of the incident again anytime between when B.B. told her that very night what had occurred, and when C.M. actually spoke to police.

156. C.M. conceded that aside from the Tim Horton’s incident, B.B. appeared to be happy whenever she was with A.V. 157. C.M. could not remember if B.B. ever told her that she was scared of A.V. in any way. Issues 158. As is common in a criminal trial, the credibility of a witness’s evidence is central to the determination of the outcome of this case.Similarly, the reliability of a witness’s evidence is a critical factor for consideration as well. 159. Essentially, in assessing the totality of the admissible evidence called at this trial, I must ask myself:

a) Do I believe A.V.’s evidence regarding the two alleged instances of sexual assault?

b) If not, does his evidence raise a reasonable doubt about either instance?

c) Even if A.V.’s evidence leaves me with no reasonable doubt, on the basis of the evidence I do accept, am I convinced beyond areasonable doubt in his guilt? The Legal Principles 160. At paragraphs 87 to 89 inclusive of R. v.

Barton, [2019] SCC 33, Moldaver J., on behalf of a four member majority of a sevenmember panel of the Supreme Court of Canada, set out the elements of the offence of sexual assault and the meaning of consent asfollows: [87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that theaccused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touchesanother person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23).

The mens rea consistsof the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”(R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 42). [88] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.[6] It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., atpara. 31), and it must be freely given (see Ewanchuk, at para. 36).

This consent must exist at the time the sexual activity in questionoccurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and43). Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity inquestion”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, thoughit does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitteddiseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)). [89] Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that thecomplainant in her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placedsquarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if thecomplainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple(see Ewanchuk, at para. 31). At this point, the actus reus is complete.

The complainant need not express her lack of consent, orrevocation of consent, for the actus reus to be established (see J.A., at para. 37). 161. In a very recent decision of the Court of Appeal for Ontario, R. v.

W.O. [2020] ONCA 392, Hoy J.A. offered guidance to trialjudges in sexual assault cases as follows: [10] In D.D., at para. 63, the Supreme Court made clear that the significance of a complainant’s failure to make a timely complaintmust not be the subject of any presumptive inference based upon stereotypical assumptions about how persons, particularly children,react to sexual abuse. [11] In D.P., the complainant failed to disclose all the assaults in his first interview with the police.

The trial judge in D.P. referred toD.D. and concluded that the complainant’s explanation for his failure to disclose all the assaults in his first interview was “perfectlyplausible”. This court, at para. 30, quoted his observation that: “The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [thecomplainant] more than one occasion to shed a burden that had been weighing on him for years.” [12] This court found no error in the trial judge’s assessment of the complainant’s credibility.

It rejected the argument that there is afundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. It concluded, at para. 31, that “[t]hecomments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any

particular case” (emphasis added). 162. Frankly, I see no reason to draw any adverse inference from the evidence of B.B. for delayed or piecemeal disclosure. At the timethe alleged incidents of sexual assault occurred, she was but 13 years of age. 163. There are, of course, other factors to consider in weighing the credibility of an accused, a complainant and other witnesses calledat trial, amongst them:

a) their motives for testifying,

b) their ability to observe and recall, and

c) their consistency to name a few. 164. Virtually every criminal trial judge is saddled with weighing the credibility of a witness. One must come up with reasons as bestone can for accepting or rejecting, in whole or in part, what one has heard from each witness. 165. This duty on triers of fact to assess credibility must be discharged based on the admissible evidence, or absence of evidence. It isseldom an easy task. However, to the greatest extent possible, it ought to require the application of logic, human experience andcommon sense before one attempts to draw conclusions as to a witness’s believability.

Not to be discounted, the reliability of eachwitness’s evidence should also be carefully considered. 166. In R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, McLachlin C.J., as she then was, wrote: [48] The sufficiency of reasons on findings of credibility — the issue in this case — merits specific comment. The Court tackled thisissue in Gagnon, setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient.

Bastaracheand Abella JJ., at para. 20, observed that “[a]ssessing credibility is not a science.” They went on to state that it may be difficult for a trialjudge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses andattempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position tosee and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s. [49] While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about thewitness . . . [50] What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings oncredibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to thecontradictory evidence.

However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized thesubstance of the issue. “In a case that turns on credibility . . . the trial judge must direct his or her mind to the decisive question ofwhether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (para.23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflictingevidence: Dinardo, at para. 30 167.

Of course, I am not to choose between the evidence of the accused and the complainant. A criminal trial cannot become acredibility contest between the two. I must decide rather whether the evidence I accept in its totality establishes the accused’s guiltbeyond a reasonable doubt. Analysis 168. The evidence of A.V. and B.B. present me with diametrically opposed versions of what occurred on March 17, 2017 and onesummer’s night in 2017. 169. With respect to the St. Patrick’s Day incident, A.V. said B.B. consented to the sexual activity with him that evening.

To thecontrary, B.B. told me she was physically overpowered into having sex with A.V. 170. Regarding the Tim Horton’s encounter, A.V. testified nothing of the sort happened. On the other hand, B.B. gave a fairly graphicaccount of A.V.’s attempts to sexually touch her and force intercourse upon her. 171. Under these circumstances, I must apply W.D.[i] principles to assess witness credibility. Do I believe A.V.’s evidence? 172. When I weigh the evidence given by A.V. and consider it against the backdrop of B.B.’s, S.B.’s and C.M.’s, I find I must accept it.I do so for several reasons. 173.

Firstly, A.V. gave an account which sounded truthful and historically accurate in all aspects. His recollection of the relevant eventswas clear. It seemed as though he was indeed remembering his first time experiencing sexual intercourse in B.B.’s bedroom on March

17, 2017. Equally, his denial of any sexual touching of B.B. at a Tim Horton’s restaurant appeared genuine. 174 . A.V. did not deny that he had numerous chances to be alone with B.B. However, a wealth of opportunity does not imply that as a young, sexually inexperienced male, he must have wanted to force himself upon B.B. with aggressive, unbridled lust on at least two occasions.

To allow oneself to think along that vein would be as intolerable, as a matter of law and logic, as to allow oneself to believe in many other stereotypical myths, which unfortunately have arisen regarding how sexual assault victims are supposed to act. 175 . Secondly, I accept what A.V. said about the evolution of discussions between B.B. and him regarding the prospect of having sexual intercourse. I believe him when he asserted that there had been previous discussion of the topic over social media and Snapchat. 176 . Thirdly, I find that A.V. was honest in his insistence that B.B. presented the condom to him.

It sent a clear and unequivocal message to A.V. as to B.B.’s desire to engage in sexual activity. It was preceded by B.B.’s decision to remove his shirt and pull him toward her. As a result, I conclude that B.B. wanted to engage in sexual intercourse with A.V. B.B., to the contrary, was not at all clear in her ability to recall whether a condom was used or not. 177 . I find I have no reason to be circumspect about A.V.’s evidence that B.B. remained a willing and active participant throughout their encounter on St. Patrick’s Day 2017.

She did not withdraw her consent during the act of intercourse, as she was well within her right to do, had she so chosen. Her consent was freely given and ongoing for the entirety of the act from beginning to end. S.B. heard nothing suspicious. I reject as well B.B.’s evidence that she was out of touch with A.V. in the days and weeks following. 178 . Fourthly, B.B.’s evidence on the mechanics of how A.V. was able to force her atop him seems implausible.

I cannot envisage how A.V. could have managed to lower B.B.’s pajama bottoms and underwear sufficiently while holding her rib cage, bearhugging her, and at the same time pulling his own pants or zipper down sufficiently to expose his penis, to then succeed in inserting it in B.B.’s vagina. This ability B.B. attributed to A.V. prior to her blackout. I cannot conceive how realistically A.V. could have accomplished what B.B. says he did. 179 . Fifthly, A.V. was unshaken in cross-examination.

His version of events remained consistent when he was tested on the details of the occurrences on March 17, 2017, and when confronted with B.B.’s account. His evidence did not falter or change. 180 . Sixthly, I believe his denial that he did not sexually touch B.B. at a Tim Horton’s. According to both B.B.’s and C.M.’s evidence, his opportunity to force sexual intercourse upon B.B. was limited to the time C.M. spent in the bathroom. The staff could not have been far away. B.B. put another male in the restaurant as well.

People would be expected to come and go in a haphazard fashion in this very public setting even late at night. To my mind, the likelihood of A.V. being detected in his attempts to sexually touch B.B. was quite high. 181 . I am satisfied this event did not occur as described by B.B. C.M. did not see what B.B. believed she did. C.M. saw no struggle or attempt by B.B. to stand up and move away from A.V. In short, C.M. offered nothing to objectively confirm B.B.’s account of what she said A.V. had just done to her. 182 . Lastly, I can find no basis for rejecting A.V.’s evidence.

The Crown labels his testimony as “implausible”, but offers no explanation why it is so. In my view, based on all the admissible evidence, which I have carefully considered in its entirety, I am persuaded that A.V. was telling me the truth. Does A.V.’s evidence raise a reasonable doubt? 183 . A.V.’s evidence does more than raise a reasonable doubt. It convinced me that he committed no sexual acts as alleged by B.B. without her consent. 184 . I specifically find that B.B. agreed to sexual intercourse with A.V. on St. Patrick’s Day 2017. I reject her evidence that she did not consent. 185 .

In addition, I find that A.V. never committed a sexual assault on B.B. in a Tim Horton’s restaurant during the summer of 2017. No such event as described by B.B. in her evidence happened. On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt that A.V. is guilty of sexually assaulting B.B.? 186 . I am not at all convinced of A.V.’s guilt. 187 . Having accepted his evidence, I must, of course, acquit him. Conclusion 188 . On a final note, I must comment that I found both S.B.’s and C.M.’s evidence to be generally unreliable.

It struck me that both young women did not have occasion to think much about the incidents which brought them to court until well after the material events unfolded. 189 . S.B. testified that she did not become aware of what her sister, B.B., said A.V. did to her on March 17, 2017 until a female police officer became involved. At the earliest, that would have been in October 2018. By that point, a year and a half had elapsed. S.B. added that B.B. and she were not particularly close at that point in time. S.B.’s claim that her sister was never the same since that fateful day rings hollow as a result.

I would think S.B. lacked any objective baseline with which to compare B.B.’s post-St. Patrick’s Day 2017 behaviour. 190 . For her part, C.M. conceded that she had not given much thought to the Tim Horton’s incident for over a year before being asked to reflect upon it. Memories fade with time. The expanse of her knowledge was limited to what B.B. told her in any event.

191. C.M. was likely with B.B. and A.V. at a Tim Horton’s restaurant on at least one occasion in 2017. However, what occurredbetween A.V. and B.B. in C.M.’s absence while they were there is not assisted through any observation made by C.M. 192. Consequently, the evidence, which both S.B. and C.M. gave, lacked any true confirmatory quality to it vis-à-vis B.B.’s accountregarding what happened respectively on St. Patrick’s Day and one summer night in 2017. 193.

Upon consideration of all relevant evidence adduced at A.V.’s trial, I must find him not guilty of having sexually assaulted B.B. onboth of the counts before me. DATED: July 9, 2020 ________________________________ March, M.G., J. Endnotes: 1. [i] R. v. W.(D.), (SCC), [1991] 1 SCR 742 A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.