r v. R. B., 2019 QCCQ 794

R. c. R.B. 2019 QCCQ 794 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL “Criminal and penal division” N°: 500-01-140939-163 DATE: February 22 rd , 2019 BEFORE THE HONOURABLE JUSTICE ROBERT MARCHI, J.C.Q. THE QUEEN Prosecutor v. R. B. Accused Judgment Pursuant to

Section 486.4 of the Criminal Code , it is ordered that any information that could identify the COMPLAINANT shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The Accused stands charged with a single count that reads as follows: Between January 1, 2012 and January 31, 2015, in Montréal, District of Montréal, did commit a sexual assault on C.B., committing thereby the indictable offense provided by section 271(1)

a) of the Criminal Code . [ 2 ] The complainant (C.B.) is the daughter of the Accused. She was 28 years old when the events commenced and 31 years old when they terminated. [ 3 ] The fact that the Accused actually sexually touched his daughter is not in issue. The only issue in this case is whether or not the complainant consented to the sexual touching and if that consent by the complainant is a valid one, especially in light of

Section 273.1(2)

c) of the Criminal Code (the Code or Cr.C . ) which reads as follows: No consent is obtained, for the purposes of sections 271, 272 and 273, where […] (

c) the Accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; […] The EVIDENCE [ 4 ] The complainant C.B. was the only witness heard for the Prosecution. [ 5 ] When the events took place, the complainant was residing with her parents. They provided her with food and lodging, although she paid rent, when she could, of approximately $60 every two weeks. Her father regularly drove her to her activities. She moved away in July 2015 because she did not feel comfortable living with her father anymore. [ 6 ] C.B. is a university graduate.

She first graduated from [University A] where she obtained a DEC in social science and mathematics. She also graduated from [University B] in “child studies”. She also studied “child studies” at [College A]. [ 7 ] She is an accredited daycare worker and has been working as such since 2009. As such, she is responsible for children of about 3 years of age. Between 2012 and 2015, she was also working as an educator in a daycare center, although she worked sporadically between 2012 and 2014. [ 8 ] She was part of a youth group at her church and she was also part of the choir of the church.

She was also a leading girl guide and as such, was responsible for approximately 30 girls. [ 9 ] In the past, she suffered from depression, for which she took medication, and for which she saw a therapist. She also suffers of dyslexia for which she had tutoring. At the time of her testimony, she was on medication for depression and social anxiety. [ 10 ] As to the facts of the case, the complainant stated in her testimony that between 2012 and 2014, when she was residing with her

parents, her father touched her in a sexual manner on many occasions. She cannot remember when the touching started, nor how and what happened the first time his father did so. [ 11 ] The sexual activity took place two or three times a month, usually in the basement of their home. She explained that the basement was a large room divided in two areas; the sexual touching took place in the area with a sofa, a chair and a TV set. The other side of the basement was the office of the Accused. [ 12 ] The complainant described the events as follows: she and her father would be downstairs watching TV.

He would be sitting in a chair, she would be sitting on the sofa. During commercials, he would move from his chair to the sofa and start touching her. The sexual activity included her father touching her lower private parts, sticking his finger in her vagina, touching her breasts under her clothing and occasionally frenchkissing. It lasted a few minutes. [ 13 ] C.B. explained that her father would come and sit close beside her and start touching her while she would remain seated. When he stuck his hand in her pants and pulled them down, she did nothing.

He would continue touching her and after a while, he would stop and go back to his chair. Sometimes, he would lie on top of her and she would touch his buttocks over his clothes. Occasionally, she would also touch him. [ 14 ] The Accused exposed himself only once: he took his penis out of his pants and, according to the complainant, forced her to touch it, asking her if she liked it.

Other than this, according to the complainant, no words were ever exchanged between the two during the sexual activity. [ 15 ] C.B. does not remember who would normally go down to the basement first, but sometimes, when her father went downstairs down first, she followed him even though she knew what would happen. C.B. admitted that in the basement, she and her father also watched sexually explicit TV shows, including shows with sexual themes, rough sex, sex involving males with multiple partners or combined sex and drugs. She admitted she enjoyed these shows. [ 16 ] The sexual activity ended in December 2015.

She cannot say why it then stopped. [ 17 ] Asked how she felt about the touching by her father, she responded that she thought that he was showing he loved her and that it felt good to her. She says that when it started, she felt it was okay, that it was not a big deal. She felt that she did not have the choice. He never asked, he just did it. She felt it was okay for him to do it. She also admitted that “all of this” felt good physically.

She also admitted that she knew that the events that were taking place between herself and her father were inappropriate. [ 18 ] The police were informed of these allegations at the end of October 2015, when C.B.’s mother called the police because she found out that her daughter had been self-mutilating. When C.B. met with the police, she told them that her father had been sexually abusing her. [ 19 ] The first time C.B. spoke about the events was in November 2014, when she discussed it with one of the organizers of a retreat she was attending.

During the retreat, someone told her that what was happening between her father and herself was abuse. That changed her opinion of what her father was doing to her and it led her to understand that it was not her father showing his love for her but rather sexually abusing her. [ 20 ] Nevertheless, another event involving her father took place after the retreat.

She testified that it happened because it felt good. [ 21 ] According to C.B., her father never talked to her about the events, even between them. [ 22 ] Following the laying of the charge against him, the Accused was released on the condition not to communicate with the complainant without her consent. She says that they communicated together a lot and even saw each other. [ 23 ] For example, the day before her testimony in court, she baked a cake and went to her parent’s home to celebrate her mother’s birthday. Her father was present.

As well, on the Thursday before her testimony, her father gave her a lift to her apartment and brought a ladder into her apartment. [ 24 ] The Accused presented no evidence in defence. Position of the parties [ 25 ] For the Prosecution, the relevant facts are as follows: the complainant is the daughter of the Accused, living with her parents, who supported her. She was going through a difficult period at the time. According to the Prosecution, the complainant did not consent to the sexual activity.

Furthermore, the defence of the Accused mistaken belief in consent cannot apply where, as here, there is no evidence of reasonable steps taken by the Accused to ascertain that the complainant consented. According to the Prosecution, further steps were required to ensure that she was consenting. [ 26 ] According to the Prosecution, should I decide that the complainant did consent, in light of

Section 273.1(2)

c) Cr.C. , such consent is not valid given the circumstances of the case, especially since the complainant was so dependent of her father even though she was an adult. [ 27 ] The defence claims that there is no evidence that the complainant was having a particularly difficult time at the time of the events, and certainly no more difficult than most young adults. The events took place not in the father’s house as alleged by the Prosecution but in the family home. It was her home too.

As an educated, adult woman, the complainant must bear some kind of responsibility for what happened. [ 28 ] Finally, the defence submits that the complainant’s consent was not vitiated by any situation of dependency. The complainant in this case was not more dependent on her father than any other young adult residing in the family home, having to go through more

difficult times, and relying on her parents. [ 29 ] For the defence, this is a case of consensual sex, which is legal between a father and a daughter. THE LAW [ 30 ] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements: (1) that the accused committed the actus reus and (2) that he had the necessary mens rea. The actus reus of assault is the unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, expressed either by words or actions, from the person being touched. [1] [ 31 ] In R. v.

Hutchinson , Chief Justice McLachlin and Justice Cromwell described the analysis of consent to sexual activity as a two-step process: [2] [4] The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) . If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent.

Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk , at para. 36 .

Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(

a) and ( b )), fraud (s. 265(3)( c )), or abuse of trust or authority (ss. 265(3)(

d) and 273.1(2) ( c )). The actus reus [ 32 ] 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. [3] The first two of the three elements are not contested here. [ 33 ] The absence of consent is determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. [4] For the purposes of determining the absence of consent as an element of the actus reus , the actual state of mind of the complainant is therefore determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective. [5] [ 34 ] Consent is defined as follows in

Section 273.1 of the Code :

(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. [ 35 ] While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence.

It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt about her assertion that she, in her mind, did not want the sexual touching to take place. If, however, the trial judge believes beyond a reasonable doubt that the complainant subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. [6] [ 36 ] The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct.

The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [7] [ 37 ] It follows from the foregoing that the trier of fact may only come to one of two conclusions: the complainant either consented or did not. There is no third option.

If the trier of fact believes beyond reasonable doubt the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law. [8] [ 38 ] To be legally effective, consent must be freely given.

Therefore, even if the complainant consented, circumstances may arise which call into question what factors prompted her consent. The Code defines a series of conditions under which the law will invalidate consent in cases of assault, notwithstanding the complainant’s ostensible consent or participation. As enumerated in s. 265(3) of the Code , these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective. [9] The Mens Rea [ 39 ] Sexual assault is a crime of general intent.

Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. [10] [ 40 ] However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant.

As such, the mens rea of sexual assault contains two elements: 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. [11] [ 41 ] The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. [12] The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused and it is not necessary for the accused to testify in order to raise the issue.

Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the

evidence called by the accused. [13] [ 42 ] As with the actus reus of the offence, consent is an integral component of the mens rea , only here it is considered from the perspective of the accused. [14] [ 43 ] 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. [15] [ 44 ] 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. [16] [ 45 ] 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. [17] [ 46 ] Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Code . [18] [ 47 ] In this instance for example, should the Court come to the conclusion that the complainant consented to the sexual activity, the next question is whether such consent is valid, especially given subsection 273.1(2)

c) of the Code , which reads as follows: 273.1 […]

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where […] (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; […] [ 48 ]

Section 273.1(2)(

c) of the Code requires proof of an inducement to sexual activity by the abuse of a position of trust, power or authority.

The mere existence of a relationship of trust, power or authority is insufficient in and of itself, to vitiate consent to sexual activity. [19] In other words, the prosecution must prove an affirmative inducement to sexual activity by an abuse of a position of trust, power, or authority. [20] Even though the threshold is not a high one, the trial judge must find that the relationship was actually abused by the accused to induce consent. [21] The trial judge must find not only a power imbalance between the parties but also that the accused used this imbalance to apply some subtle form of pressure on the complainant to consent. [22] The mere existence of a power imbalance is not enough to vitiate consent. [ 49 ] In a case of R. v.

Alsadi , the British Columbia Court of Appeal stated that if the trial judge accepts that the complainant consented to the sexual activity, the issue then becomes whether the accused “incited” or “induced” the complainant to engage in the sexual activity by abusing a position of trust, power or authority. It does not depend on the nature and extent of the accused’s authority nor on the fact the complainant was a willing participant. [23] The issue is whether the accused incited or induced the complainant to participate in the sexual activity by abusing a position of trust, power or authority.

It is not whether she misapprehended her right to refuse his advances, or feared reprisals, or did not understand that she could say “no”. [24] [ 50 ] In R. v. Lutoslawski , Doherty J.A. wrote that

Section 273.1(2)(

c) of the Code speaks not only to the abuse of a position of authority but also to the misuse of a position of power or trust: [25] […] The

section addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship. The term “exercise of authority” in s. 265(3)(

d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationships set out in s. 273.1(2)(

c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity. [ 51 ] In Long , Fitzpatrick J. summarizes as follows: [26] To summarize, therefore, s. 273.1 (2)(

c) requires the trial judge to determine that:

a) The complainant consented; and, if so, then

b) The consent was vitiated by the accused’s affirmative abuse of his position of trust, power, or authority over the complainant, which abuse subjectively induced the complainant to consent. analysis

I) was consent, if any, vitiated [ 52 ] At the time of the alleged offenses (between January 2012 and January 2015), the complainant was between 27 – 28 and 30 – 31 years old and living with her parents. They provided her with food, lodging, help with lifts and moral support, not unlike the circumstances of many young adults today. [ 53 ] Although C.B. suffered from depression for which she sought therapy and although she required tutoring for her dyslexia, she was able to pursue higher education and find a job as a daycare worker.

Indeed, there is no evidence to establish that C.B. was so fragile or vulnerable that she would be incapable of freely consenting to sexual activity. There is no evidence either that her mental or

psychological state impaired her ability to validly consent to sexual activity with the Accused. The consent, if any, given by the complainant would not be vitiated by

Section 273.1(2)

c) Cr.C. [ 54 ] There is no prohibition in our law against a father and daughter consenting to engage in sexual activity, short of incest. Moreover, it cannot be stated that consent to sexual activity by a daughter with her father is automatically vitiated by virtue of their relationship. An adult daughter, like any other adult, can consent to sexual activity, even with her father, which consent is valid unless it is induced by the abuse of a position of trust, power or authority. [ 55 ] When Parliament intends to prohibit consensual sex between adults, it says so. For example,

Section 155 of the Code prohibits sexual intercourse between a person who is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild. Sexual intercourse is therefore prohibited between a parent and his or her child. There is no such widespread prohibition for other sexual activities as long as a valid consent is given. [ 56 ] In this instance, there is no evidence that the Accused obtained the consent of the complainant, if any, by inducing her to engage in the activity by abusing his position of trust, power or authority.

The issue is whether the Accused incited or induced the complainant to participate in the sexual activity by abusing a position of trust, power or authority. It is not whether, at the time of sexual activity, she misapprehended her right to refuse his advances, or feared reprisals, or did not understand that she could say “no”: [27] [ 57 ] Nor is there any evidence that the mental or psychological state of the complainant affected in any way her ability to validly consent to sexual activity with the Accused. The consent, if any, given by the complainant would not be vitiated by

Section 273.1(2)

c) Cr.C. II) IS THERE PROOF OF ABSENCE OF CONSENT? [ 58 ] Therefore, the question raised in this instance is limited to the one stated in the case of R. v.

Hutchinson : does the evidence establish beyond a reasonable doubt that there was no “voluntary agreement of the complainant to engage in the sexual activity in question”. [28] The onus is on the Prosecution to establish beyond a reasonable doubt that there was no such voluntary agreement by the complainant to the sexual activity. [ 59 ] The Court will deal first with the “general” sexual activity between the Accused and the complainant and then, separately, with the incident where the complainant alleges that her father forced her to touch his penis. [ 60 ] As to the “general” sexual activity between the Accused and the complainant, it is admitted by the Prosecution [29] that the complainant, in her testimony, did not expressly use the terms “I did not consent”.

Obviously, even though such a statement can be considered as a good indication of the state of mind of a complainant, there is no such requirement for proving absence of consent. [ 61 ] Counsel for the Prosecution then refers to various excerpts of the complainant’s testimony which, in his opinion, are relevant to the issue of consent. For example, the complainant testified that “[she] felt like that [she] didn't have a choice”, that her father “didn't ask me, he just did it”.

Or, as she describes the events and her reaction: “I would continue sitting” - “I didn't do anything” – “I did nothing, he would just continue”. [ 62 ] Even though those excerpts of the testimony of the complainant can be relevant to the issue of consent, in light of all of the evidence in this case, they do not constitute proof beyond a reasonable doubt of absence of consent. [ 63 ] The Court listened carefully to the testimony of the complainant. She testified openly, frankly and candidly about her “special” relationship with her father. She showed no resentment towards him.

Quite to the contrary, she indicated her affection for him. She testified to the best of her recollection. When she did not remember the answer (and that happened quite frequently, sometimes on critical pieces of her testimony), she said so. [ 64 ] The Court cannot conclude that her testimony is proof beyond a reasonable doubt of absence of consent.

On the contrary, from the whole of the evidence, the Court concludes that at the time of the sexual activity, [30] the complainant, for her own reasons, [31] consented to the sexual activity with her father, something that, as an adult woman, she could validly do, even though such behavior between a father and a daughter might appear to be antisocial or amoral to some.

But this is not the issue to be decided here. [ 65 ] The Court also concludes from the testimony of the complainant that it is only in retrospect (after the November retreat) that she realized that the behavior of her father was not “showing his love” but sexual abuse. [ 66 ] As to the incident where it is alleged by the complainant that she was forced by the Accused to touch his penis, it requires a different analysis, since being forced cannot equate to consent. [ 67 ] In examination in chief, the complainant stated that her father exposed himself once by taking his penis out of his pants and that he then forced her to touch it.

He also asked her if she liked it. However, she does not remember how her father would have forced her to touch his penis and the issue of the manner was not further pursued. [ 68 ] In cross-examination, again, she could not say how her hand ended up on the penis of her father. She did not remember. More specifically, she could not remember if she touched him of her own volition. Again, the issue was not further pursued. [ 69 ] As already alluded to, one of the essential elements of sexual assault is “touching” the victim by the Accused.

If there is no evidence of “touching” by the Accused, then, there can be no sexual assault. [ 70 ] As to this specific incident, there is no evidence that the Accused actually “touched” the complainant. The evidence of that essential element being absent, the Accused cannot be found guilty of sexual assault. [32] [ 71 ] FOR ALL THOSE REASONS , the Accused is acquitted.

_________________________________ ROBERT MARCHI, J.C.Q. M e Bruno Ménard Attorney of the Director of Criminal and Penal Prosecutions M e Eric Sutton Attorney of the Accused Dates of hearings: July 30 th and 31 st and December 6 th , 2018.