R. v. E.S., 2019 NBPC 15

2019NBPC15 R. v. E.S. File number: Y1558-11 PROVINCE OF NEW BRUNSWICK BATHURST YOUTH CRIMINAL JUSTICE COURT HER MAJESTY THE QUEEN - v. - E.S. DECISION rendered by the Honorable Brigitte Sivret, Judge of the Provincial Court, in Bathurst, New Brunswick, on August 28, 2019. Appearances : Mr. René Dumaresq, for the Crown Mr. Luc Roy, for the defendant I – THE ACCUSATION 1 . The defendant, E.S., is charged with one count of sexual assault on the person of A.B., pursuant to

section 271 (

b) of the Criminal Code of Canada . 2 . Both the defendant and the complainant were students at the B[…] High School (BHS) at the time of the alleged incident, which took place during the second school semester that went from January through June 2018. In fact, the Crown alleges that the commission of the offence took place between the months of February and April 2018.

3 . At trial, the prosecution presented the testimony of S.D., the Modern History teacher at BHS, and the testimony of A.B., the alleged victim. The defense presented the testimony of N.Y., a classmate and friend of the defendant, the testimony of E.S., the defendant, and the testimony of S.M., the principal of BHS. II – THE EVIDENCE 4 . I will first summarize the evidence offered by A.B. and then the testimonies of the other witnesses. TESTIMONY OF A.B. 5 . According to A.B.’s testimony, he and the defendant met in grade 10 and became school friends. They, however, were not friends outside the school program.

In grade 11, they continued to be part of a group of friends that included a student name Franz. Sometime during the month of February 2018, A.B. changed his hairstyle. The defendant and Franz started to make fun of A.B.’s new hairstyle by touching his hair and calling him names. A.B. did not like to be touched and asked them to stop. Despite A.B.’s efforts to convince them to stop their touching, they continued to do so on a daily basis. A.B. testified that the defendant was petting his hair even though he asked him to stop on several occasions. 6 .

According to A.B., the touching of his body by the defendant and Franz continued and progressed to the touching of his hands, fingertips and groping of his chest. He kept asking them to stop, he made bodily movements, like ducking, bending forward or backwards, dodging to avoid being touched, but the touching continued. At one point, A.B. stopped reacting to their touching in an effort to encourage them to abandon their gestures or actions but unfortunately, it did not stop.

The touching happened during the Modern History class of teacher S.D. and/or in the school hallways. 6.1 Once the touching reached the groping of his chest, A.B. was able to convince Franz to stop. As for the defendant, he never stopped the touching of A.B.’s body. According to A.B., the defendant even started to grab and squeeze his buttocks on a regular basis. In fact, A.B. testified that the defendant grabbed his buttocks every time he had an occasion. A.B. started to feel really angry and frustrated by the defendant’s actions towards him. He did not know what to do to make him stop. 7 .

A.B. also testified that the defendant’s behavior towards him affected him very negatively. He was losing interest in school and started to isolate himself at home. In the evenings, he spent a lot of time alone in his bedroom. He also explained that the touching from the defendant made him feel very uncomfortable, embarrassed and the he did not know how to talk or report it to the teachers or school administration. He wanted to quit school. 8 . A.B. became even more uncomfortable and angry after the defendant left on his desk a cartoon, with his name and the defendant’s name, of two men having sex.

A.B. also testified that the defendant went as far as asking him for sexual favors. He recalled the defendant asking him to meet in the bathroom in five minutes so they could engage in sexual activity. The defendant also suggested to him to go have sex in the janitor room. A.B. also recalled an incident during which the defendant poked his buttocks with a pencil while he was standing in front of the teacher S.D. at the end of a class. 9 . On April 23, 2018, the defendant approached A.B. in the Modern History class and whispered to A.B.’s ear an invitation to go have sex. A.B. burst out in anger.

He stood up, pushed the defendant, raised his voice and a verbal confrontation between him and the defendant took place. Teacher S.D. witnessed A.B. standing up and yelling profanations towards the defendant. Teacher S.D.’ reaction was to ask A.B. to leave the classroom and go see the school counsellor or the administrator. A.B. left the classroom and met with the school counsellor. He told her what was happening with the defendant and then started to cry. On April 24, 2018, the principal of BHS, Mr. S.M., met A.B. and his father to discuss the situation.

The same day, A.B. also met the Bathurst Police Force to file a complaint against the defendant. Following the investigation, the present accusation was laid in Provincial Court against the defendant. TESTIMONY OF E.S.

10 . The defendant, E.S., testified at trial. He confirmed becoming a school friend with A.B. during grade 10 and that their friendship continued as they engaged in grade 11 at BHS. 11 . According to the defendant, they both enjoyed a good friendship. They used to joke and laugh together during Graphic Design class. He also mentioned that A.B. helped him with his French assignments. 12 . The defendant confirmed that during the second semester of grade 11, he and A.B. were in the same Modern History class. He also confirmed that during that same semester, A.B. changed his hairstyle and started to use hair mousse.

He said that him and Franz, another student, started to touch A.B.’s hair. 13 . In fact, the defendant confirmed that he repeatedly touched A.B.’s hair, hands, chest and buttocks but denied doing it in a series of progressive actions. He said that the touching happened several times but he was doing it as a joke. He said that A.B. was also slapping his buttocks and that they were both laughing together. 14 . He also testified that A.B. asked him to stop but he never realized that A.B. was not in agreement with the touching.

In fact, the defendant said that A.B., and I quote, “never indicated seriously that I had to stop”. According to the defendant’s testimony, A.B. never indicated to him that he had a problem with what the defendant considered to be “touching for jokes”. He added that A.B. never gave him any signs of not wanting to participate in the touching. 15 . In cross-examination, the defendant admitted that he did place a cartoon of sexual content on A.B.’s desk. He also admitted having asked A.B. to meet in the bathroom and that the invitations had a sexual connotation.

He also admitted that A.B. asked him to stop the touching several times and that A.B. even threatened him to break his teeth if the touching did not stop. He also said that A.B. used expressions like “Fuck off faggot” or “stop it faggot” when asking him to stop the touching. The defendant, however, thought A.B. was not seriously asking him to stop and continued to believe they were just joking together. The defendant added that he was doing those gestures to make A.B. laugh. 16 .

Finally, the defendant testified that if he would have known that A.B. did not agree to be part of the touching/joking, he would have stopped touching A.B.. 17 . In

summary, the defendant confirmed most of the testimony offered by A.B. with regards to the touching described during his testimony. He, however, denied the incident involving the poking of the buttocks with a pencil and said that the slapping of buttocks was mutual between to two of them. 18 . As for A.B.’s outburst on April 23, 2018, the defendant said that he did not know why A.B. reacted the way he did in the classroom but believed it was triggered by something else that was happening in A.B.’s personal life. 19 .

Finally, the defendant introduced into evidence a selfie photo that he took at school with A.B. a few weeks prior to the incident of April 23 rd . The photo shows A.B.’s expression, a rather unhappy face, while sitting behind the defendant in a classroom. TESTIMONY OF N.Y. 20 . The defendant called N.Y. as a witness. N.Y. is an 18-year-old young man, and at all material time was a classmate of the defendant and A.B. in the Modern History class. 21 . N.Y. testified that A.B. and the defendant were friends and that he did not observe any unusual behavior between the two of them.

He said that they were mutually slapping their buttocks and hugging each other. 22 . According to N.Y., the slapping of buttocks between students was not an out-of-ordinary behavior in school. He said he only noticed one occasion where A.B. strongly reacted towards the defendant and that occasion was on April 23, 2018. He remembered A.B.

using homophobic profanities towards the defendant. 23 . N.Y. also confirmed being a close friend of the defendant and confirmed that he did not know all aspects of what was happening between A.B. and the defendant at all material time of the alleged offence. TESTIMONY OF STEVEN S.D. 24 . Steven S.D. is a teacher at BHS. He was teaching Modern History during the second semester of January to June 2018. A.B. and the defendant were both students in his class during that semester. 25 . Mr. S.D. remembers the incident between A.B. and the defendant that took place in his classroom at the end of April 2018.

He remembers A.B. and the defendant working on a group project. They were sitting facing each other. He does not know what happened but he saw A.B. suddenly stand up to the defendant, raising his voice and pronouncing profanations towards the defendant. 26 . Mr. S.D. intervened by asking A.B. to leave the classroom to cool down and suggested he go talk with the school counselor or the principal. A.B. left his classroom but he did not know where A.B. went. He later was asked by the administration of the school to sit A.B. and the defendant in opposite end of the classroom until the end of the school year. 27 . Mr.

S.D. had no knowledge of prior incidents between A.B. and the defendant nor was he aware of any issues between the two of them. TESTIMONY OF S.M. 28 . S.M. has been the principal of BHS since 2010. The morning after the incident of April 23, Mr. S.M. met with A.B. and his father. He remembered that both A.B. and his father were very upset about the situation. He informed them that he wanted to speak with both students – A.B. and the defendant – before doing anything.

He felt that A.B.’s father was not satisfied with his reaction towards the situation so he suggested that they could also report the situation to the police. 29 . Mr. S.M. also confirmed during cross-examination that after the meeting with A.B. and his father he spoke with the defendant. He concluded that since the defendant deserved his education, a short suspension of the defendant attending school would be sufficient. He also made sure that A.B. and the defendant would not sit together in classroom in order to avoid further incidents. 30 .

I also understood from his testimony that because A.B. and his father decided to report the situation to the Bathurst Police Force, that no further step, action or investigation of the situation would be taken by the school’s administration. III – THE ANALYSIS 31 . The defendant is accused of committing a sexual assault in violation of

section 271 (

b) of the Criminal Code of Canada . His testimony is not in direct or complete contradiction with the version of facts presented by the prosecution. Therefore, this case does not rely on a sole determination of credibility of witnesses. It is rather a case of determining whether: 1 - the activities by the defendant on A.B. constitutes “assault” of a sexual nature as to violate A.B.’s sexual integrity; 2 - the activities took place without A.B.’s consent and; 3 - the defendant did not have an honest but mistaken belief that A.B. communicated his consent to the activities. 32 .

The following provisions of the Criminal Code of Canada are relevant and need to be applied in order to properly answer the above-mentioned questions of law: Sexual assault 271 Everyone who commits a sexual assault is guilty of

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to affect his purpose.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. Where belief in consent not a defence 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 (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or willful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

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; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. 33 . First, the evidence established beyond reasonable doubts that the defendant, by touching A.B.’s hair, hands, fingertips, groping A.B.’s chest, slapping or squeezing A.B.’s buttocks, he applied force intentionally on A.B.’s person as described in section 265(1) of the Criminal Code of Canada . However, in order to constitute an assault, the Crown has to prove beyond reasonable doubts that all of the said activities occurred without A.B.’s consent.

34. Although the defendant admitted all of the activites described by A.B., he denied the poking incident with a pencil and theprogression in the touching as described by A.B.. He alleged that A.B. was also squeezing his buttocks. He believes that A.B. was inagreement with what he described as simply “joking together”. Because this part of his testimony is in contradiction with evidencepresented by Crown, I will have to apply the principles established by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

According to the SCC, I first need to determine the credibility of the defendant’s testimony. 35. It is clear that the defendant’s testimony was focused on trying to convince the Court that he firmly believes that A.B. consented tothe touching, slapping and squeezing. He answered most of the questions on cross-examination by repeating that all of it was just a joke.His testimony is one that I would categorize as a “mission testimony”. He was primarily focusing on “I did it but A.B. also did it and wewere just joking and laughing together”.

He admitted that A.B. asked him several times to stop but he said A.B. was never reallyseriously asking him to stop. He also testified that A.B. called him a faggot but he continued to believe that A.B. was consenting. 36. I find that the defendant, E.S., was trying to be honest during most of his testimony but when it reached the crucial part of hisevidence concerning A.B.’s consent, I find that his evidence was tainted with exaggeration and lack of common sense. That part of histestimony is not trustworthy.

How can an intelligent young man continue to believe that his school friend agreed to be the subject of hisjoking while, at the same time, being asked by the same friend several times to stop? His friend, according to his own admission, calledhim a “fucking faggot” and even went as far as threatening him to break his teeth if he did not stop. Therefore, I find that this aspect ofhis testimony is not credible and it does not raise a reasonable doubt as to whether A.B. consented to the touching, groping, squeezing orgrabbing. 37.

I now have to assess the evidence presented by the Crown with regards to the existence or not of A.B.’s consent. A.B. denied anyform of consent or agreement during his entire testimony. I find his testimony to be trustworthy. He was calm, he never hesitated inanswering the questions and I did not notice any signs of exaggeration. He did not try to denigrate the defendant. He never contradictedhimself during cross-examination. He simply told things as they were. I find his testimony to be credible and reliable. Therefore, Iconclude that A.B. never agreed to any of the defendant’s actions towards him.

In fact, I believe that A.B. did a lot to avoid being thesubject of the actions of the defendant, namely the petting of his hair, the touching of his hands and fingertips and the squeezing of hisbuttocks. In the absence of A.B.’s consent, the actions of the defendant as described by A.B. constitute assault pursuant to section265(1)(

a) of the Criminal Code of Canada. 38. In order to constitute sexual assault pursuant to

section 271(b), the prosecution needs to prove the sexual nature of assault. The testto be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: Whether viewed in thelight of all the circumstances, the sexual context of the assault is visible to a reasonable observer. 39. This offence is one of general intent so the issue is whether, notwithstanding the absence of a proven sexual intent, the conduct wascommitted in circumstances of sexual nature as to violate A.B.’s sexual integrity. These are examples of circumstances relevant todetermine whether the assault is of sexual nature: - the part(

s) of the body touched; - the nature of the contact; - the situation in which it occurred; - the words and gestures accompanying the act(s); - the use of threats and/or force; - the intent or purpose of the person committing the act(

s) and; - if motive of the defendant is sexual gratification, it is merely a factor to be considered. 40. In this case, the impugned conducts occurred for a period of two to three months during the school year. The conducts were mainlydiscreet, away from the eyes of the teacher or other students and progressive as described by A.B.. It started by petting his hair, then itwent onto discreetly touching his hands and fingertips and attempting to hold and caress his hands. It progressed to the groping of hischest and then the squeezing of his buttocks in a subtle way.

The progression continued by pulling him by the shoulders and whisperingto him the invitation to have sex in the bathroom and in the janitor’s room. There was also the cartoon of two men having sex left onA.B.’s desk. Even though the defendant argues that he was doing all of this just to joke and laugh with A.B., it seems that a reasonableobserver would conclude that the impugned conducts, in light of all those circumstances, were of sexual nature. Therefore, I am satisfiedthat the conducts of the defendant towards A.B. were of sexual nature as to violate A.B.’s sexual integrity.

Touching someone in a waythat violates that person’s sexual integrity, without that person’s consent, constitutes a “sexual assault” even though it was done in acontext of a joke. No consent means no touching ; joking or not!

41 . The defendant raised and argued the defense of honest but mistaken in belief that A.B. consented to the conducts of the defendant. In the context of sexual assault, this common law defense is addressed in

section 273.1 and 273.2 of the Criminal Code of Canada .

Section 273.1 defines consent as the voluntary agreement of the complainant to engage in the sexual activity. I have already concluded that A.B. did not agree to the sexual activities in question and did not want to be touched by the defendant. For the purpose of the defense of honest but mistaken belief in communicated consent, the analysis shifts to the mental state of the defendant and the question becomes whether the defendant honestly believed that A.B. had affirmatively communicated by words or conduct his agreement to engage in the impugned conducts with him. This defense is only available if the requirement of reasonable steps under

section 273.2 (

b) of the Criminal Code of Canada has been met. In other words, for the defense of honest but mistaken belief to be successful, the evidence needs to show that the defendant took reasonable steps to ensure the complainant has communicated his consent. 42 . The defendant testified that he did not know that A.B. wanted him to stop or that A.B. was not in agreement with the impugned conducts. He said if he would have known that A.B. did not want to be touched, he would have stopped.

Despite the fact that A.B. repeatedly asked him to stop, the defendant continued to assume A.B. was in agreement with all of his sexual, non-acceptable conducts. One would wonder if the defendant’s beliefs were rather based on a high tolerance of the school’s authority for that type of student behavior as opposed to beliefs supported by A.B.’s words or gestures that might have led the defendant to believe that what he was doing was acceptable. I am saying this because of the testimonies of N.Y. and S.M..

N.Y. testified that the slapping/squeezing of the buttocks amongst students is a normal and accepted behavior at BHS. S.M., the principal of BHS, did not seem to be concerned or overly worried about the allegations of sexual misconduct by one of his students against another one. I was actually surprised by the course of actions or the lack thereof by the school’s administration in this particular case. Obviously, it is not my role to determine whether the school took this complaint seriously or not and whether the code of conduct in the school is appropriate.

I do, however, wonder what we are doing wrong, as a society, to make our youth, such as the defendant and his friend N.Y., both intelligent and ambitious young men, to believe that such inappropriate sexual misconduct is acceptable behavior in our high schools. Like I said, I am just wondering. 43 . As for the photo of A.B. and the defendant, which was introduced into evidence, I fail to see how that photo could be considered as an expression or a gesture of A.B.’s consent to the unacceptable sexual behavior of the defendant towards A.B.. 44 .

In any event, having considered all of the evidence presented during the trial of this case, I came to the conclusion that the defendant has no foundation in facts to establish a defense of honest but mistaken belief that A.B. communicated his consent. The defendant took no reasonable steps to ascertain that A.B. was in agreement with his conduct. In fact, it seems clear from the evidence that his beliefs arose from his own recklessness or willful blindness as to how A.B. already felt about all of his inappropriate sexual behavior towards A.B.. 45 .

Therefore, I find the defendant, E.S., guilty of the offence of sexual assault on the person of A.B. in violation of

section 271 (

b) of the Criminal Code of Canada . Dated this 28 th day of August, 2019, in Bathurst, New Brunswick. Brigitte Sivret Provincial Court Judge