R. v. S.Y., 2017 ONCJ 798

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. S.Y., 2017 ONCJ 798 DATE: 2017-11-22 BETWEEN: HER MAJESTY THE QUEEN — AND — S.Y. Before Justice M. Greene Reasons for judgment

Released November 22, 2017 T. Schreiter……………………………………………………………………….for the Crown J. Giuliana ………….………….…………………………………………….……for S.Y. Introduction [ 1 ] S.Y. is charged with three counts of sexual assault and one count of forcible confinement in relation to events that took place at his ex-girlfriend’s residence over a ten hour period on August 7, 2016. The issues at trial were credibility and consent. Brief

Summary of the Evidence The Events at A.C.’s residence [ 2 ] A.C. testified that S.Y. came over in the early morning hours of August 7, 2016. He promised to stay for a very short time. Instead of keeping to his word, S.Y. stayed for hours. During this time, he spoke of the relationship and made numerous attempts to kiss A.C. The kissing and sexual advances were unwanted and A.C. communicated this to S.Y. by pushing him away and saying “no”.

S.Y. ignored A.C. and continued to make sexual advances to her. [ 3 ] Eventually S.Y. positioned himself in front of the door to A.C.’s apartment, effectively blocking A.C.’s access to the only means of exiting her apartment. S.Y. is larger than A.C. and had she tried, A.C. would have been unable to get past him. A.C. felt that she was unable to leave the apartment. [ 4 ] After hours of talking to S.Y., A.C., feeling desperate to find a way for S.Y. to leave, agreed to have sex with S.Y. but only if he agreed to leave right after the sexual intercourse. S.Y. advised that he would.

A.C. then indicated that he had to wear a condom to which S.Y. agreed. They then went to the bedroom and proceeded to have sexual intercourse. In the midst of the sexual intercourse, S.Y. started to laugh and asked A.C. if she thought he was wearing a condom. She replied that she did to which S.Y. asked if she was sure. He then laughed and pointed to the condom on the bed. A.C. became very upset by this and left the room. She went to the washroom and had a shower. [ 5 ] After her shower, A.C. returned to the bedroom and asked S.Y. to leave. He refused.

She then put on her pajamas and went to sleep in the bed beside S.Y. At some point, while she was still asleep S.Y. took a photo of her and S.Y. in the bed. She learned of this picture only after he posted it on Facebook the next day. [ 6 ] After sleeping for a few hours, A.C. and S.Y. awoke and spoke for a bit while in bed. S.Y. then stated “I have to do this”. He then grabbed her legs and forced A.C. to have sexual intercourse with him. After this forced sexual intercourse, A.C. offered S.Y. some food.

She packed him up some homemade soup, helped him remove the cat hair from his clothing, and sent him home. [ 7 ] S.Y. testified to a very different version of events. According to S.Y., he went to A.C.’s house with the hopes of catching up with her. They spoke for some time and eventually started to kiss. While S.Y. kissed A.C. first, she kissed him back. S.Y. testified that the kissing was “mutual”. [ 8 ] After some time, S.Y. asked if they should go to the bedroom. A.C. replied “yes” but indicated that S.Y. had to wear a condom. S.Y. and A.C. then went to A.C.’s bedroom and removed their clothes.

S.Y. started to perform oral sex on A.C. and then they had sexual intercourse in a number of different positions. According to S.Y., A.C. advised him that she had three orgasms (the fact that she said this was not disputed by A.C. at trial). S.Y. testified that during the sexual intercourse he asked her if it felt like he was wearing a condom. S.Y. testified that he asked this because at that moment he noticed that the condom was on the bed. He admitted that he then pointed to

the condom and laughed. S.Y. denied intentionally removing the condom. Instead, he testified that it must have fallen off. S.Y. testified that during the sexual intercourse he did not ejaculate and at times lost his erection. S.Y. speculated that the condom fell off when he lost his erection. [ 9 ] According to S.Y., after the condom fell off, A.C. became very upset and started to cry. They stopped having sex and A.C. took a shower. After the shower he helped her put on lotion and then they went to sleep. A short time later, S.Y. woke up and noticed that A.C. was sleeping on his chest.

He reached for his cell phone and took a photograph of them. He later posted this on Facebook. A copy of this posting was filed with the court. [ 10 ] S.Y. testified that A.C. then woke up. They talked in bed for a short while then S.Y. asked A.C. if she wanted to have sexual intercourse again. A.C. asked if he would wear a condom. S.Y. agreed to wear a condom and then A.C. said “O.K.” to having sex with S.Y. [ 11 ] After the sexual intercourse, they were both hungry so, according to S.Y., they went to A.C.’s kitchen and had breakfast together.

After breakfast, A.C. packed S.Y. some soup to take home and helped take off the cat hair that was on his clothing. S.Y. then left her residence. A.C.’s Disclosure of the Sexual Assaults [ 12 ] A short time after S.Y. left, A.C. went to the pharmacy to get “plan B” as she was concerned about becoming pregnant. The pharmacist also raised the issue of sexually transmitted diseases. While at the pharmacists, A.C. started to cry and could not stop crying.

She drove home crying so hard that at times she could not see very well. [ 13 ] Upon arriving home, A.C. reached out to a friend who stated that A.C. had been sexually assaulted. It was recommended that she contact the rape crisis line. A.C. called the crisis centre and then with the assistance of another friend, attended at the hospital for a sexual assault exam. [ 14 ] While at the hospital, the nurse noted that A.C. was distraught and quiet. A.C. had two red marks on her, which A.C. described as “hickies”. [ 15 ] During this time, A.C.’s friend, Ms.

D. attempted to contact her many times but A.C. did not respond. This was very unusual as A.C. and Ms. D. spoke every single day. A.C. remained home from work for a few days and continued to feel distressed over what took place. [ 16 ] A few days later, A.C. reached out to Ms. D. and revealed that she had been sexually assaulted. Ms. D. came over and, at the request of A.C., helped retrieve the used condoms from the garbage and the underwear that A.C. had worn on August 7. A.C. testified that the nurse had suggested that she preserve these items as evidence. Ms.

D., who testified at trial, noticed that A.C. was very distraught. The Text messages between A.C. and S.Y. [ 17 ] At approximately 11:05 am on August 7, 2016, A.C. sent a text message to S.Y. asking if he liked the soup she made him. She sent a second text stating: “I hope u understand me better after talking with me”. S.Y. responded that it was good and he understands now. [ 18 ] At 3:44 pm., A.C. sent another text to S.Y. She wrote:

“ U bruised me” and “u know I don’t like that”. A.C. testified that she was referring to the “hickies” he left on her neck. She had told in the past that she did not like this. S.Y. responded: “I didn’t know!” “Maybe I was a little bit excited last night!”. [ 19 ] When A.C. did not respond, a few hours later, at 7:16 pm., S.Y. wrote: “Are you mad? I didn’t know I did it”. [ 20 ] There was no response to this text and half an hour later, S.Y. wrote another text indicating that he wanted to have a conversation with A.C. There was still no response to this text and an hour and fifteen minutes later, at 9:06 p.m.

S.Y. sent a longer text indicating that he had been crying, that he has strong feelings for A.C., that he is hurt and that it is time to get over the relationship. He further wrote that he knew that A.C. wanted to get back together with her ex and he will not interfere with this. [ 21 ] One hour later, at 10:19 p.m., A.C. responded with a lengthy text where she alleged that S.Y. sexually assaulted her. Her allegation was largely consistent with her evidence in court.

A.C. wrote that she asked him to leave many times and he refused, that she pushed him away and he did not listen, that he promised to leave after they had sexual intercourse but then refused to leave. She further wrote that he should have stopped kissing when she pushed him away and that he has no respect for her. [ 22 ] S.Y., in his response to this text message, did not directly answer the allegations. Instead, he wrote that she was “playing stupid games”, that she never felt anything for him and that he did respect her.

S.Y. ended his text by stating : “hop you never get hurt like this” . [ 23 ] At the same time that these last two text messages were being sent, S.Y. also sent a message to A.C. on Facebook. He posted the picture that he had taken of him and A.C. in bed that morning. In this photograph A.C.’s face is next to S.Y.’s face and her arm is around his upper body onto S.Y.’s shoulder.

S.Y. wrote next to the photograph: “sorry about this but I keep this in my heart, I guess I look happy but just because I was happy to see you again”. [ 24 ] In the next post on Facebook S.Y. wrote: “if you did not like it from the beginning you could have said no from the beginning. Yes don’t play with people’s feelings”. S.Y. then posted the following: “sorry for everything I did. Thank you for everything you did”.

[25] The remaining posts on Facebook relate to being tested for sexually transmitted diseases. [26] At trial S.Y. was asked why he did not expressly deny A.C.’s allegations. S.Y. testified that he was shocked by the allegation anddecided to keep his text messages focused on their relationship instead of the allegation. Issues [27] The issues in the case at bar can be summarized as follows:

a) Has the Crown has proven beyond a reasonable doubt that A.C. did not consent to the sexual activity

b) Has the Crown has proven beyond that S.Y. knew or was willfully blind or reckless as to whether A.C. was consenting.

c) Has the Crown proven beyond a reasonable doubt that A.C. was unlawfully confined? The Burden of Proof [28] The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on theCrown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is basedupon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe thatS.Y. is possibly or even probably guilty. Reasonable doubt requires more.

As a standard, reasonable doubt lies far closer to absolutecertainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is itproof to an absolute certainty. In order to convict, a trial judge must be sure that every essential element of the offence has been madeout. The Offence of Sexual Assault [29] The offence of sexual assault must be considered in the context in which the offence was created. McLachlin C.J. wrote in R. v.J.A., 2011 SCC 28 , [2011] S.C.J.

No. 28, “It is a fundamental principle of Canadian law that a person is entitled to refusesexual contact.” Major J., speaking for the majority of the court in R. v. Ewanchuck, (SCC), [1999] S.C.J. No. 10,stated at paragraph 28, …Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control overwho touches one’s body, and how, lies at the core of human dignity and autonomy.

The inclusion of assault and sexual assault in theCode expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. Thecommon law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every mans’ personbeing sacred, and no other having a right to meddle with it in any the slightest manner”: See Blackstone’s Commentaries on the Laws of England (4th ed. 1770). Book III, at p. 120.

It follows that any intentional but unwanted touching is criminal. [30] All offences in the Canadian Criminal Justice System have both an actus reus and a mens rea. The same is true for the offence ofsexual assault. The actus reus of a sexual assault is made out where the Crown has proven beyond a reasonable doubt that: the defendanttouched someone; where the contact was sexual in nature; and, the person did not consent. The Crown must prove all three of theseessential elements beyond a reasonable doubt. In other words, the test is not whether the victim consented.

The test is whether theCrown has proven beyond a reasonable doubt that the victim did not consent. [31] The mens rea for sexual assault is made out where the Crown proves beyond a reasonable doubt that the defendant intended totouch the complainant in a sexual manner and knew, or was reckless or willfully blind to the complainant’s lack of consent.

Once theactus reus is established, the defendant can only rely on his lack of knowledge about the absence of consent if the defendant tookreasonable steps to confirm that the victim was consenting. [32] Applying this standard to the case at bar, the Crown must prove the following:

a) That A.C. was touched by S.Y.;

b) The touching was of a sexual nature;

c) That A.C. did not consent to the touching;

d) That S.Y. intended to touch A.C. in a sexual manner; and,

e) That S.Y. knew that A.C. did not consent or was reckless or willfully blind to her lack of consent and that he took reasonable stepsto confirm that A.C. was consenting. [33] In the case at bar, the following essential elements have effectively been conceded:

a) That S.Y. touched A.C. in a sexual manner on three occasions over a ten hour period.

b) That S.Y. intended to touch A.C. in a sexual manner on all three occasions. [34] The only remaining issues on the sexual assault counts revolve around the issue of consent, which given the way the evidence waspresented at trial, is inherently linked to the credibility or reliability of the witnesses. To that end, it is useful to first consider the issue ofconsent. Consent – Legal Principles [35] The concept of consent in a sexual assault trial cannot be divorced from the purpose of criminalizing non-consensual sexual acts.

As noted above the offence of sexual assault is premised on protecting personal integrity and that having control over who touches one’sbody lies at the core of human dignity and autonomy. It is for this reason, that the definition of consent is not mere silent acquiescence. In R. v. J.A., supra, McLachlin C.J. stated that consent in the context of a sexual assault case is “the conscious agreement of thecomplainant to engage in every sexual act in a particular encounter” (see para 31).

McLachlin C.J. further stated at paragraph 34“consent for the purpose of sexual assault is defined in s.273.1(1) as the voluntary agreement of the complainant to engage in the sexualactivity in question”. Therefore, even if the complainant verbally agrees to the sexual touching, if her agreement is not voluntary, thenthere is no consent. [36] The issue of consent in the context of a sexual assault trial was also explored by the Supreme Court of Canada in R. v. Ewanchuck, (SCC), [1999] S.C.J. No. 10.

In this case, Major J., speaking for the majority of the court stated that the absence ofconsent is “subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at thetime it occurred”. Major J. went on to note that on the issue of the absence of consent “the actual state of mind of the complainant isdeterminative” (at paragraph 27). Moreover, under Canadian Law, there is no such thing as “implied consent”.

Either the complainantconsented or she did not. [37] In other words, if the trial judge finds beyond a reasonable doubt that sexual touching took place and that the complainant did notconsent, the actus reus has been proven. The actus reus does not take into account the defendant’s state of mind. Only the victim’s stateof mind. [38] Consent cannot be given ahead of time. In assessing the issue of consent, the only relevant time frame for the consent is while thetouching is taking place. As noted by McLachlin C.J. in R. v.

J.A., supra, at paragraph 46, The only relevant period of time for the complainant’s consent is while the touching is occurring: Ewanchuck, at para 26. Thecomplainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainantconsents at the time but later changes her mind (absent grounds for vitiating consent).

Conversely, the actus reus has been committedif the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before orafter the fact [emphasis added]. [39] Consent must also be completely voluntary. Pursuant to

section 273.1 of the Criminal Code, consent is not obtained where the

accused has induced the complainant to agree to the sexual activity by abusing a position or trust or power of authority. It thereforefollows that consent is not voluntary where a complainant agrees to have sex only as a means of evicting an unwanted person from herresidence. In other words, if I accept that the events took place as described by A.C., then there was no consent in this case. [40] In the case at bar, the issue arose about the impact of the removal of a condom if the consent to sexual activity was dependent onthe use of the condom.

I agree with the Crown that where the consent to sexual activity is premised on the accused person wearing acondom and the accused removes the condom, there will be no consent in law to the sexual activity post the removal of the condom. [41] In the case at bar there are three allegations of sexual assault

a) Kissing

b) Sexual intercourse in the early morning hours of August 7

c) Sexual intercourse in the morning of August 7 after both S.Y. and A.C. slept. [42] A.C. testified that she did not voluntarily consent to any of the above sexual acts. If I accept her evidence and reject S.Y.’s evidence,I must find S.Y. guilty of all three counts of sexual assault. [43] S.Y. testified that A.C. verbally consented to the two acts of sexual intercourse. He further testified that A.C.’s consent was notpremised on him agreeing to leave. According to S.Y., A.C. never asked him or wanted him to leave her residence that morning.

S.Y.further testified that in relation to the kissing, he inferred A.C.’s consent based on A.C.’s actions and the fact that she kissed him back. In relation to the two counts of sexual intercourse, if I accept S.Y.’s evidence or am left in a reasonable doubt about his evidence on thispoint, I must find him not guilty of those two counts. This is because this evidence, if believed (or if it raises a reasonable doubt), issome evidence that A.C. did in fact consent.

I appreciate that the consent is based solely on the victim’s state of mind, but where Iaccept or am left in a doubt by defence evidence that establishes actual consent, this is sufficient evidence of consent to raise a reasonabledoubt. [44] In relation to the kissing, S.Y. did not ask A.C. if she was consenting. Instead, he testified that he believed that A.C. was consentingbecause of the level of intimacy that night and because she kissed him back.

If I accept S.Y.’s evidence on this point I must ask whetherS.Y.’s belief is reasonable in all the circumstances and whether he took reasonable steps to ascertain A.C.’s consent. Findings of Fact – Legal Principles [45] With the above legal background in mind, this case really does in many respects revolve around the credibility and reliability of thewitnesses and other evidence presented to the court. [46] Before I engage in assessing the evidence, a few comments must be made about the fact finding process. In Canadian CriminalLaw, there is a clear process for addressing evidence where the defendant testifies.

The court must consider whether she believes thedefendant’s evidence. If the court does not believe the defendant, she must go on to consider whether the defendant’s evidence leavesher with a reasonable doubt about the commission of the offences. Where there are competing versions of events the court is notpermitted to merely decide which version of events the court likes better. In assessing whether or not to accept the defendant’s evidencethe court must consider all the evidence, including the evidence of the complainant.

A considered and reasoned acceptance of thecomplainant’s evidence beyond a reasonable doubt is a sufficient basis to reject the testimony of the defendant. As was stated in R. v.J.J.R.D., (ON CA), [2006] O.J. No. 4749 (C.A.) at paragraph 53: 53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review.

Thetrial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, theappellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt.

An outrightrejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on aproblem identified with the way the accused testified or the substance of the accused's evidence. [47] While it is open to the court to reject the evidence of the defendant because she believes the complainant, there may be occasionswhere the court believes both the defendant and the complainant.

In such a case, as long as the defence evidence amounts to a defence in

law, the court will be left in a reasonable doubt. Findings of fact [48] While four different offences are alleged, in my view, it is unnecessary to consider each offence separately in addressing thecredibility issues that were raised in this case. The four different offences alleged are inherently linked and as such, I have decided toapproach the evidence holistically and consider the evidence in its totality when assessing the reliability and credibility of the witnesses. [49] Crown counsel argued that I should reject S.Y.’s evidence wherever it was contradicted by A.C.

Similarly, counsel for S.Y. arguedthat I should reject A.C.’s evidence where ever it is contradicted by S.Y. Both counsel identified what they perceived as being frailties inthe witness’s evidence and urged me to use these frailties as a basis to reject the witness’s evidence. A.C.’s Evidence [50] Crown counsel argued that I should accept AC’s evidence because it was credible, consistent and reasonable. He further arguedthat A.C.’s evidence was corroborated by the following pieces of evidence:

a) A.C.’s out of character reaction and response to Ms. D. in the days following the sexual assaults;

b) Demeanor evidence including crying at pharmacy, crying on the way home from the pharmacy, calling the crisis centre, crying atthe hospital, not attend work for days, taking a shower after the first sexual assault and being adverse to retrieving the condoms andunderwear for the police; and

c) The fact that A.C. endured a sexual assault kit.

a) The out of character behaviour with Ms. D. [51] Ms. D. testified at trial that she is very good friends with A.C. It is common for them to text each other many times throughout theday. In addition to texting frequently throughout the day, they always speak the morning after a night out. On the day following thealleged sexual assaults, A.C. did not text Ms. D. at all and did not respond to any of Ms. D.’s text messages. When she finally did contactMs. D. the following day, A.C. wrote that something bad had happened. She also wrote that she was getting help and that she would notbe at work for a few days. Ms.

D. testified that this type of text messages was completely out of character for A.C. [52] On Wednesday evening, Ms. D. received another text from A.C. In this text message, A.C. indicted that she was ready to meet Ms.D. and talk about what happened. She then sent her a screen shot of a document that A.C. wanted Ms. D. to read before coming over. The document gave recommendations on how friends should relate and speak to sexual assault victims. It was at this point that Ms. D.realized that A.C. had been sexually assaulted. [53] Ms. D. went over to A.C.’s residence and asked what she could do to help.

A.C. was distraught, her hair was a mess, she lookeddisheveled and like she had been crying. A.C. asked Ms. D. to retrieve the used condoms and her underwear from the morning of thesexual assault. She advised this was necessary for the police. A.C. became more upset when she saw the condoms. She remained upsetthe entire time that Ms. D. was at her residence. All this evidence is confirmatory of A.C.’s evidence that she was sexually assaulted. [54] An issue arose during Ms. D.’s evidence about the admissibility of the exact wording of A.C.’s text messages to Ms. D. There wasno issue that Ms.

D.’s evidence about A.C.’s demeanor was admissible at trial. The only issue was what use could be made of the exactwords A.C. wrote to Ms. D. Crown counsel argued that the exact words uttered were admissible, despite amounting to a prior consistentstatement, to bolster A.C.’s credibility and help confirm that she was in fact sexually assaulted. In support of this position, the Crownrelied on the recent appellate decision of R. v. Khan, 2017 ONCA 114 , [2017] O.J. No. 745 (C.A.).

Counsel for S.Y. arguedthat the exact words written were akin to a prior consistent statement and therefore were not admissible. [55] In R. v. Khan, the Court of Appeal held that a prior consistent statement, admitted as narrative, can in some cases be used more

substantively. The court noted that in the appropriate case, the prior consistent statement can be used to help assess the credibility and/orreliability of the witness. In R. v. Khan, the court provided examples of when a prior consistent statement can be used for this purpose. In all the cases cited, the prior consistent statement was relevant to credibly because it explained or helped the trier of fact understandhow the disclosure of the sexual abuse came about. In assessing when a prior consistent statement can be used for more than narrative,the court in R. v.

Khan, supra, stated at para 35, 35 The line between the permissible and impermissible uses of prior consistent statements is a fine one, as noted by the SupremeCourt of Canada. In Dinardo, the prior consistent statements of an intellectually disabled complainant were, at trial, used to corroborateher in-court testimony. The Quebec Court of Appeal held that the trial judge erred in using the complainant's prior consistent statementsto corroborate her evidence that the crime had been committed.

The Supreme Court of Canada agreed and highlighted the distinctionbetween the permissible and impermissible use of prior consistent statements. Charron J. stated, at para. 37: • In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements maybe used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed.

Thechallenge is to distinguish between "using narrative evidence for the impermissible purpose of 'confirm[ing] the truthfulness of thesworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which maythen assist the trier of fact in the assessment of the truthfulness or credibility" [Emphasis added.] [56] In my view this is not an appropriate case to use the prior statements made by A.C. to Ms. D. in her text messages on Monday or onWednesday to assist in assessing A.C.’s credibility beyond demeanor evidence.

The first text message was sent more than 24 hours afterthe alleged sexual assaults. By then A.C. had already disclosed the sexual assaults to a number of different people including friends, asexual assault nurse and a staff at the crisis centre. There is nothing in the timing of this text message or the way in it which the textmessage was sent that assists the court in assessing credibility or understanding how A.C.’s allegations were initially disclosed. Similarconsiderations apply to the text messages sent on Wednesday.

I therefore find that while the text messages are admissible for narrativeand to assess demeanor, they are not admissible to otherwise bolster A.C.’s credibility. Other Demeanor evidence [57] Crown counsel argued that the fact that A.C. took a shower after the first sexual assault is evidence that confirms that A.C. wassexually assaulted. Respectfully, I disagree. There are many reasons to take a shower after sexual intercourse.

While it is true, thatmany women may take a shower after being sexually abused, the corollary is not necessarily true, that the fact of taking a showerconfirms one was sexually assaulted. [58] There is other demeanor evidence, however, that in my view is confirmatory of A.C.’s evidence. Firstly, A.C. testified that she wasdistraught when she attended at the pharmacist and during her entire drive home. Secondly, there is the evidence from A.C. that shecalled a rape crisis centre.

Thirdly there is evidence from the agreed statement of fact that A.C. was upset and crying when she attendedthe hospital and fourthly, there is evidence from A.C. that she took a few days off of work after the alleged sexual assaults. [59] I am satisfied that all this evidence of A.C.’s conduct and demeanor in the days after the alleged sexual assaults is relevant and serveto confirm A.C.’s evidence. The sexual assault kit [60] On August 7, 2016, A.C. attended at the emergency department at the Toronto General Hospital. She saw a sexual assault nurse at10:25 p.m. A.C. left the hospital shortly after midnight.

The nurse observed that A.C. was wearing sunglasses, was tearful and quiet. She also noticed two reddened areas on her neck (there was no dispute at trial that A.C. had “hickies” on her neck from the sexualactivity with S.Y.). [61] Crown counsel argued that the fact that A.C. underwent a sexual assault kit is further confirmation that A.C. was in fact sexuallyassaulted by S.Y. In R. v. Mugabo, 2017 ONCA 323 , [2017] O.J. No. 1979 (CA), the Court of Appeal held that the trial judgecould take into account the fact that the victim went through a very onerous sexual assault examination.

In the case at bar, the fact that A.C. went to the hospital and her demeanor at the hospital is one other piece of evidence that speaks toA.C.’s overall conduct and demeanor in the days following the alleged sexual assaults.

[ 62 ] Despite all this confirmatory evidence, counsel for S.Y. urged the court to reject A.C.’s evidence. Counsel argued that A.C.’s evidence should be rejected because her evidence was inherently implausible and because of the numerous inconsistencies within her evidence. [ 63 ] In relation to counsel’s argument on implausibility, he referenced the following evidence:

a) That A.C. had three orgasms during the sexual intercourse;

b) That A.C. asked S.Y. to help put lotion on her body after her shower;

c) That A.C. slept in the same bed as S.Y.;

d) That A.C. made soup for S.Y. the morning after the alleged sexual assaults;

e) That A.C. took the time to remove cat hair from S.Y.’s clothing before he left her residence;

f) That A.C. sent text messages to S.Y. after he left asking about the soup;

g) That A.C. did not even think she had been sexually assaulted until one of her friends advised her that she had been sexually assaulted;

h) That A.C. stopped at the car wash on the way home from the pharmacy. [ 64 ] I completely reject this argument. I find nothing implausible about the above noted actions. In my view, it is utterly inappropriate to reject a witness’s testimony, in particular in a sexual assault trial, merely because the witness behaved in a way that one person suggests is inconsistent with how a victim would act. Victims do not all react the same way to sexual violence. This is particularly true where the victim and the offender have been in a relationship. Relationships are complex.

One can be sexually violated by an ex- boyfriend and still be conflicted about the person and still act kindly or continue talking to that person. [ 65 ] A.C. testified about how it took her time to wrap her head around what had happened. She had been in a romantic relationship with S.Y. for some time. A.C. did her best to go forward that first day with her weekend plans but eventually realized that this was not possible.

In my view the fact that A.C. slept in the same bed as S.Y. later that morning, made him lunch, had an orgasm (albeit it is unclear if she had an orgasm or just told S.Y. that she had an orgasm), or sent him text messages about the soup does nothing to detract from A.C.’s evidence and does not give me cause to reject her evidence. [ 66 ] In addition to these alleged implausibility’s, counsel for S.Y. further argued that A.C. was inconsistent in her evidence and made material omissions when she testified in court. The inconsistences and omissions identified by counsel are as follows:

A) A.C. testified that she cried all the way home from the pharmacy, yet she stopped to wash her car;

B) A.C. failed to tell the court that she used a lint brush to remove cat hair from S.Y. when he left the residence until she was confronted with this fact in cross-examination;

C) A.C. was inconsistent on whether or not the sexual intercourse continued after she discovered that S.Y. was no longer wearing a condom; and

D) A.C. failed to originally testify that she achieved orgasm during the first alleged sexual assault. [ 67 ] Not all inconsistencies will necessarily lead to rejecting a witness’ evidence. The trier of fact must go on to consider the nature of the inconsistencies and what effect, if any, the inconsistences have on a witness’ credibility or reliability. Where the inconsistency goes to the heart of the allegations before the court, this may cause the trier of fact to have doubts about the veracity or reliability of the witness.

On the other hand, where the inconsistences are so peripheral to the main issues at trial or where the inconsistencies can be explained by the passage of time or some other factor, they might have no impact on the witness’s credibility. In my view, none of the alleged inconsistencies outlined above cause me to disbelieve A.C. The inconsistencies are easily explained by the emotional turmoil of that day and the identified omissions relate to details that are not of major significance in this case. [ 68 ] Counsel for S.Y. further argued that A.C. should be disbelieved because she had a motive to fabricate.

Counsel argued that A.C. regretted having sexual relations with S.Y. because she was in the process of getting back together with an ex-boyfriend and that A.C. made up the sexual assaults as a way of covering up the consensual sexual acts with S.Y. [ 69 ] In my view this suggestion is not even remotely supported by the evidence. Firstly, A.C. denied that this was her motive to fabricate

and I believe her. Secondly, there was no foundation for this suggestion. A.C. admitted that she was in the process of resuming a romantic relationship with another person. It does not follow that this relationship was in jeopardy because A.C. had sexual relations with S.Y. nor does it follow that that A.C. would commit perjury and public mischief in order to cover up having sex with S.Y. [ 70 ] Ultimately, I have no basis to disbelieve A.C. I found A.C. to be a credible and reliable witness.

Her conduct in the days following the alleged assaults was completely consistent with what one might expect and her level of emotional upheaval clearly confirms that something distressing happened to A.C. S.Y.’s evidence [ 71 ] As previously stated, even if I believe the complainant’s evidence, I may still be left in a reasonable doubt by the defendant’s evidence. I therefore must review S.Y.’s evidence. In doing so, I am permitted to contrast it with A.C.’s evidence and rely on the fact that I believe A.C. as a basis to reject S.Y.’s evidence. [ 72 ] Counsel for S.Y. urged the court to accept S.Y.’s evidence.

He argued that S.Y. was honest and forthright with the court. His answers were consistent and his version of events was plausible. Moreover, he argued that S.Y.’s evidence was confirmed by the text messages sent by S.Y. to A.C. [ 73 ] Crown counsel argued that I should reject S.Y.’s evidence for the following reasons:

a) S.Y. admitted to having consumed six drinks that night;

b) S.Y. was evasive in that he could not recall if he digitally penetrated A.C. Crown counsel argued that this defies belief;

c) S.Y. was inconsistent on the issue of whether or not he expressly asked A.C. if she wanted to have sexual intercourse with him;

d) S.Y.’s time line of events had a one hour gap in it; and

e) S.Y. during his evidence was evasive when asked to describe A.C.’s demeanor that morning. [ 74 ] In my view, S.Y. presented as an honest witness. He answered all the questions put to him in what I thought was a relatively frank manner. He withstood a very extensive and skilled cross-examination and was largely consistent throughout his testimony. In my view, none of the arguments put forward by the Crown give me cause to reject S.Y.’s evidence.

I will briefly address each argument. [ 75 ] Crown counsel argued that the fact that S.Y. consumed six alcoholic beverages before attending at A.C.’s residence is evidence that S.Y. was impaired by alcohol which impacted his memory and judgment. Respectfully, I disagree. S.Y. testified that despite consuming this alcohol he was not impaired. Six alcoholic beverages for an average size male when consumed over an entire night and where the last drink was consumed at least an hour if not more before S.Y.’s attendance at A.C.’s residence, does not lead to the automatic conclusion that S.Y. had to be impaired.

I accept his evidence that he was not impaired and that his judgment was intact. [ 76 ] Crown counsel also argued that S.Y.’s version of events had a one hour gap in it and that this should impact his credibility. S.Y., during his evidence, was asked to provide a time estimate for each and every activity that took place that morning. S.Y. testified that he spoke to A.C. in the kitchen for a certain period of time, had oral sex with A.C. for 20 minutes, then went into a particular sexual position for another 20 minutes and another sexual position for another 20 minutes etc.

When all of S.Y.’s time estimates for each sexual act and event were added up, the Crown argued an hour of time was missing. Crown counsel argued that this hour coincides with the time when A.C. was begging S.Y. to leave. Crown counsel therefore urged me to reject S.Y.’s denial that A.C. begged him to leave. Respectfully I disagree. S.Y. was at A.C.’s residence for many hours on August 7, 2016. On S.Y.’s version of events there was a lot of talking, sexual activity and sleeping.

S.Y.’s failure to accurately assess the timing of each individual sexual act, when there was no suggestion that he was looking at clock or checking the time, in my view, is an unfair method of assessing his credibility. It is far more likely that his time estimate for each event was wrong because he was not paying attention to the time.

[ 77 ] Crown counsel also argued that S.Y. was inconsistent in his evidence about whether or not A.C. said “yes” to having sexual intercourse with him. Originally in his evidence, S.Y. testified that upon waking up he asked A.C. if she wanted to have sex again. She then asked him if he had a condom and when he indicated that he did, she stated “O.K.”. S.Y. understood this to mean that A.C. was consenting. When asked to repeat this conversation during cross-examination, S.Y. testified that after asking A.C. if she wanted to have sex she stated “yes, do you have a condom”.

It is the addition of the word “yes” that the Crown argues is inconsistent. Cleary, S.Y. added the word “yes” in cross-examination. In my view, however this is inconsequential given how the evidence unfolded. S.Y. never claimed to be repeating the conversations verbatim. This would be a difficult task given that the trial took place more than a year after the allegations. Instead, S.Y. provided the court with the gist of the conversation and what he understood from the conversation.

On both versions of the conversation, S.Y. asked if A.C. wanted to have sexual intercourse and A.C. indicated her agreement by saying “O.K.” on the first version and by stating “yes” on the second version. Either way, the gist is the same. This inconsistency is understandable and does not give me cause to reject S.Y.’s evidence. [ 78 ] Crown counsel also argued that S.Y.’s inability to remember if he digitally penetrated A.C. during their lengthy sexual encounter was implausible. I disagree.

Much like A.C. was inconstant on whether or not sexual intercourse took place after the condom came off, this is the kind of inconsistency that given the long night and the emotional turmoil S.Y. was in as is evidenced from S.Y.’s text messages, it is completely understandable. [ 79 ] The Crown further argued that S.Y. was evasive during his evidence. When asked to describe how he knew that A.C. was upset after discovering the condom came off, S.Y. was unable to simply state that she was crying. I do not find this to be evasive. This exchange took place more than half way through a long cross-examination.

It can often be difficult to understand questions and formulate responses during a cross-examination. The same thing happened during A.C.’s evidence. At one point counsel had to ask A.C. the same question multiple times, yet A.C. was still unable to answer. It was my impression that despite what appeared to be a simple question, A.C. just did not understand it and a break was recommended. After the break, A.C. was able to easily answer the question. In my view, S.Y.’s response to the above noted question can be viewed in much the same light.

This is particularly so given that S.Y. readily admitted in his examination in chief that A.C. was upset with him when she discovered that the condom was no longer on S.Y. [ 80 ] The final argument put forward by the Crown is that S.Y.’s evidence should be rejected because when A.C. accused him in a text message of sexually assaulting her, he did not deny it. I agree that the failure to respond to an allegation in a text message could be considered an admission by silence. This, however, is not necessarily so.

In the case at bar, S.Y. testified about why he did not expressly deny the allegations made by A.C. in her text message. S.Y. testified that he had sent A.C. a number of texts about the relationship, then all of a sudden A.C. sent this text that took him by surprise and shocked him. In light of his shock, S.Y. decided to talk about the relationship more generally and his view that she was playing games with his feelings as opposed to responding to this false allegation.

Having read the entirety of the exchanges, and heard S.Y.’s explanation, I accept his explanation and therefore do not view his silence as an admission. [ 81 ] I reach this conclusion for a number of reasons. Firstly, the first few text messages exchanged between A.C. and S.Y., readily support S.Y.’s evidence that S.Y.’s visit with A.C. was productive and meaningful. A.C. wrote that she hoped that S.Y. understood her better since their talk. One

interpretation of this text message is that A.C. and S.Y. had a meaningful discussion that morning where A.C. felt like she was “heard” by S.Y. This

interpretation is completely consistent with S.Y.’s evidence about what took place that morning. Secondly, the tone of S.Y.’s text messages do not give the impression of a person trying to cover up a sexual assault. For example, S.Y. writes at length about being hurt by A.C. emotionally. Thirdly, S.Y. did react in some way to the allegation. He accused A.C. of playing with his feelings and playing “stupid games”. While not an outright denial, it does suggest that S.Y. disagrees with A.C.’s behaviour towards him.

When I consider the text messages as a whole, I find S.Y.’s explanation completely reasonable in the circumstances. I accept that he was shocked by the allegation and chose to focus on the relationship and not the allegations in his response. [ 82 ] An hour and many text messages after the first allegation was made, S.Y. wrote: “Plus if you ddint like it from the beginning you could say no from the beginning.

Yes don’t play with people’s feeling Its just I pic that I want to have for me Lest leaving like that..I said what I have to said I want to feel better not wrost Sorry for everything I did Thank you for everything you did” [ 83 ] Crown counsel argued that this apology was an admission of guilty. Generally when one writes “ I am sorry” when an allegation is made, this can be viewed as an admission of guilt. I made the following finding in R. v. Chime, unreported, August 31, 2017 OCJ,

In my view, the text that Mr. Chime sent to G.M. the next day where he stated “Sorry” “I was wasted last night!!” is effectively anadmission that he did something wrong to G.M. Mr. Chime testified that he never read the text messages and only apologized becausehis core beliefs require him to apologize and leave things on good terms with everyone even where he has done nothing wrong. Hiscounsel argued that in light of this evidence, Mr. Chime’s apology cannot be considered an admission of responsibility. I completelyreject Mr.

Chime’s evidence that he did not read G.M.’s text message and that he only apologized because he wanted to leave on goodterms with G.M. In my view, Mr. Chime’s evidence as to why he sent this text message does not accord with common sense, is notbelievable and I reject his evidence on this point. Firstly, if Mr. Chime truly believed that he should apologize even though he didnothing wrong so that everyone will stay on good terms and not be angry, then why lie in his apology. Surely lying will only makethings worse not better and completely detracts from the sincerity of the apology.

Secondly, it is difficult to believe that Mr. Chimewould have even known that G.M. was angry from one text of “don’t call me”. If he did nothing wrong, this kind of text would haveeither led most people to believe that G.M. was busy at that moment or led to complete confusion about the sudden turnaround inbehaviour. [84] I reach a different conclusion in the case at bar. S.Y.’s apology came an hour or more after the original allegation. He had sent anumber of text messages about the relationship and his hurt feelings in that hour.

S.Y. testified that he was speaking more generallyabout the relationship as opposed to the allegation when he wrote this. Looking at the text messages and Facebook posts in their totality,I accept his evidence on this point. [85] I have reviewed S.Y.’s evidence in detail. His evidence about his feelings and his actions are plausible. He was straightforward inhis evidence and I have no basis to reject his evidence. While it is open to me to reject his evidence solely on the basis that I believeA.C. beyond a reasonable doubt, I am unable to reach that conclusion in the case at bar.

I found both witness to be very credible. When Iconsider all the evidence, I am not sure which version of events is true and therefore I am not sure what actually happened that morning. Application of my credibility findings to each charge Count 1: Sexual assault – the kissing [86] In the case at bar, A.C. testified that S.Y. kissed her without consent and that she made her lack of consent known by pushing himaway and saying “no”.

S.Y. testified that while he did not actually ask A.C. if she was consenting to being kissed, he honestly believedthat she was consenting because of how things were progressing that night and that when he kissed A.C. she kissed him back. S.Y.cannot speak to A.C.’s state of mind, while there is some circumstantial evidence that could assist with the issue of consent, it is myview that instead of wading through the issue of whether this is sufficient to establish consent, this issue is best resolved by askingwhether or not the Crown has proven that S.Y. had the mens rea for the offence.

That is has the Crown proven that S.Y. knew that A.C.was not consenting and that he was not willfully blind or reckless to her lack of consent. [87] Pursuant to

section 273.2 of the Criminal Code, a defendant’s belief in consent to a sexual act is not a defence where:

a) The belief arose out of the defendant’s self-induced intoxication

b) The defendant was willfully blind or reckless to whether the complainant was consenting

c) Where the defendant did not take reasonable steps to ascertain that the complainant was consenting. [88] The Ontario Court of Appeal recently addressed the issue of mistaken belief in consent recently in the case of R. v. Orwin, 2017ONCA 871. The court summarized the law as follows: [21] The “defence” of mistake is simply a denial of mens rea. It does not impose any burden of proof upon an accused.

Applied tothe issue of consent in cases such as this, honest but mistaken belief is an argument that the Crown has failed to prove beyond areasonable doubt that the accused knew that the complainant was not consenting to the sexual activity in question: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 44; R. v. L.S., 2017 ONCA 685, at paras. 37 and 39. [22] For an accused’s conduct to be morally innocent, the evidence must show that he believed that the complainant communicatedconsent to engage in the sexual activity alleged to constitute the actus reus of the offence: here, anal intercourse.

Speculation by an

accused about what was going on in a complainant’s mind affords no defence: Ewanchuk , at para. 46 . Further, an accused’s belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law, and thus provides no defence: Ewanchuk , at para. 51 . [23] A final point concerns the limitation on mistaken belief in consent imposed by s. 273.2 of the Criminal Code .

A mistaken believe in consent cannot arise from an accused’s own recklessness, wilful blindness, or a failure to take reasonable steps, in the circumstances known to the accused at the time of the sexual activity, to ascertain that the complainant was consenting. [ 89 ] As previously indicated I am unable to reject S.Y.’s evidence. On his version of events, he was not impaired that morning, he knew A.C. well, they had talked for a long time about their relationship, and during the course of the morning he kissed her with the belief that A.C. wanted to be kissed.

S.Y.’s belief was then confirmed when A.C. kissed him back. In my view, in all these circumstances S.Y.’s belief in A.C.’s consent to be kissed was reasonable. I appreciate that he did not ask A.C. if he could kiss her. In many cases, failure to ask that question could effectively rebut the reasonableness of the defendant’s belief in consent and would cause a judge to conclude that reasonable steps were not taken to confirm the complainant’s consent. Given the nature of the relationship involved in this case and the description of the events that morning, I am satisfied that this is not one of those cases.

It was open to S.Y. to respond to the intimacies of the night/early morning by kissing A.C. When she kissed him back, S.Y. could reasonably conclude that A.C. was consenting to being kissed some more. Having concluded that I do not reject S.Y.’s evidence, I therefore find that the Crown has not proven beyond a reasonable doubt that S.Y. knew that A.C. was not consenting to the kissing. Count 2: the first Sexual intercourse [ 90 ] As stated above, S.Y. testified that A.C. verbally consented to the sexual intercourse that took place.

Having concluded that I do not reject S.Y.’s evidence, this is sufficient evidence of consent to leave me with a reasonable doubt as to be S.Y.’s guilt on this count. [ 91 ] I am also satisfied that the Crown has not proven beyond a reasonable doubt that S.Y. knew that A.C. was not consenting. S.Y. testified that in his mind A.C. consented to have sexual intercourse with him. He reached this conclusion because when he asked A.C. if she wanted to go to the bedroom, her response was “yes” but only if S.Y. wore a condom.

S.Y. testified that he was sober, no pressure was exerted on A.C. and he agreed to wear a condom. On this evidence, which I do not reject and am left in a reasonable doubt by, the defence of his honest belief that A.C. was consenting is made out. [ 92 ] There is one additional issue that the court must consider in relation to this count. Both S.Y. and A.C. testified that the condom came off during the sexual intercourse. Even on S.Y.’s version of the evidence, A.C.’s consent to sexual intercourse was premised on S.Y. wearing a condom.

If S.Y. intentionally removed the condom and then continued to have sexual intercourse with A.C., I am satisfied that the offence of sexual assault would have been made out. S.Y. provided an explanation about what happened with the condom. He testified that it must have fallen off by accident. He further testified that as soon as this was discovered, and A.C. indicated that she wanted to stop, all sexual activity stopped.

For the reasons I have already indicated I accept S.Y.’s evidence on this point and therefore find that S.Y. did not intentionally remove the condom and that he stopped engaging in sexual activity as soon as he noticed that it fell off. The loss of the condom in these circumstances does not make out an offence as the consent was not vitiated and once it was revoked, the sexual activity stopped. Count 3: Sexual Assault – the second sexual intercourse [ 93 ] S.Y. testified that A.C. verbally consented to this sexual activity. He also explained his reasons for his belief that A.C. was consenting.

His reasons were based on A.C.’s statement that she was agreeable to having sex with him and the absence of any reason for him to doubt her verbal consent. For the reasons stated above, I do not reject S.Y.’s evidence on this point and therefore the Crown has not proven the absence of consent beyond a reasonable doubt nor has the Crown proven beyond a reasonable doubt that S.Y. knew that A.C. was not consenting. Count 4: Forcible Confinement [ 94 ] The charge of forcible confinement is based on A.C.’s evidence that S.Y. was sitting in front of the door, refusing to leave her apartment and blocking her exit.

S.Y. denied that this ever took place. He denied ever blocking A.C.’s access to the exit or otherwise limiting her movement. For the reasons already stated, I am left in a reasonable doubt by S.Y.’s evidence and therefore find him not guilty of this count.

Conclusion [ 95 ] This was a complicated case. Three very compelling and honest appearing witnesses testified before the court. After listening carefully to all the evidence, and considering all the confirmatory evidence, I ultimately did not know which version of events was true. There were many reasons to accept A.C.’s evidence and equally many reasons to accept S.Y.’s evidence. This lack of certainty as to what took place in my view is the very essence of reasonable doubt. I therefore find. S.Y. not guilty of all the charges before the court. Released November 22, 2017 Justice Mara Greene