R. v. Sayers, 2019 ONCJ 733

WARNING The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(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 victim of the right to make an application for the order; and (

b) on application made by the victim, 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. Sayers , 2019 ONCJ 733 DATE: 2019-09-12 Elliot Lake Information No. 29590 BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM SAYERS Before Justice John Kukurin Heard on July 16, 2018, December 5, 2018, July 4, 5 and 29, 2019 Reasons for Judgment released September 12, 2019 Ms. H. Mitchell......................................................................................... counsel for the Crown

Mr. R. Fabris................................................................ counsel for the defendant Adam Sayers KUKURIN J. [ 1 ] These are Reasons, after trial, with respect to charges against the accused, Adam Sayers, of two counts under s.271 of the Criminal Code , alleged to have been committed on June 27, 2017 and June 28, 2017 (the latter date amended on consent to June 26, 2017). The charges are of sexual assault. The Crown prosecution proceeded by

summary conviction. A publication ban was imposed, on consent, under s.486.4 of the Criminal Code . [ 2 ] The complainant, S., and the accused, Adam Sayers, were the only witnesses called by the Crown and by the defence respectively. They were the only two persons present during the period of time that the offences were alleged to have taken place. Not surprisingly, this led to testimony that has previously, and often, been described as “he said/she said” evidence. This makes credibility a very important issue in the case. Moreover, it requires this court to closely scrutinize the evidence at trial.

Especially here, where the accounts of the complainant and the accused are, on the salient events in their narratives, quite contradictory. [ 3 ] The accused entered a plea of “not guilty” on both charges. Mr. Sayers is presumed innocent until proven guilty. He has no obligation to prove his innocence. The burden of proof to satisfy the court that he is guilty of these offences is on the Crown. That burden is to satisfy the court of all of the essential elements of the charges. Moreover, that burden is to satisfy the court on the standard of proof beyond any reasonable doubt.

It is a burden that never shifts to the accused. It remains on the Crown. [ 4 ] The court must consider and weigh the totality of the evidence. Ultimately, the rhetorical question the court must ask is whether the Crown has proven the offences it alleges on the part of the accused beyond a reasonable doubt. Reasonable doubt is logically connected to the evidence or the lack of evidence. The court cannot just believe that the accused is possibly, or even probably, guilty of these offences. Proof beyond a reasonable doubt requires more.

On the other hand, the Crown does not have to present evidence that represents proof beyond all doubt. Absolute certainty is a large step beyond the Crown’s duty. Beyond a “reasonable” doubt is what the law requires for a finding of guilt. [ 5 ] Reasonable doubt has been much described in criminal law jurisprudence. Perhaps the most succinct definition was explained by Justice Peter Cory in the Supreme Court of Canada decision R. v. Lifchus [1] in 1997 The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense.

It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [ 6 ] The issue at this trial is primarily one of credibility. Credibility encompasses a broad range of factors that impact upon the testimonial trustworthiness of witnesses. Credibility has two main elements: honesty and reliability. Honesty is tied to a witness’ sincerity, candour and truthfulness.

Reliability is connected to a number of factors: cognitive, psychological, developmental, cultural, temporal and environmental, all of which impact on the accuracy of a witness’ perception and memory, and ultimately, the narrative presented in the witness box. These do not necessarily go hand in glove. An honest witness may be still be unreliable. [ 7 ] Many factors have to be considered by the court in assessing credibility.

The witness’ powers of observation, the passage of time, especially its impact on memory, the interest in the outcome, the demeanour of the witness while testifying, particularly in cross examination, the reasonableness of a particular version of events, the internal consistency of the witness’ story, and any changes to that story if it was told previously, either in or out of court. [ 8 ] Credibility cannot be based overly on whether the personal demeanour of a witness carries the conviction of truth. Some witnesses

are simply good story tellers: some are not. Some may truly be convinced that the events they recount happened as they recounted them, even though other incontrovertible evidence may belie the happening of such events. A credibility assessment must view the story’s consistency with the probabilities that surround the existing circumstances.

The real test of the truth of a story is its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as being reasonable in the place, time and circumstances in which the events of the story took place. [ 9 ] Credibility is not an all or none proposition. Some portions of a witness’ testimony may be more worthy of belief than other portions.

Provided that a reasonable explanation is provided by the court, all, some, or none of a witness’ testimony may be accepted as a true account of events. [ 10 ] The Supreme Court of Canada elaborated on the analytical path of trial judges who were faced with credibility issues in their final adjudications in R. v. W.(D) [2] . First , if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third , even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 11 ] The W.(

D) decision is not to be taken as a template of three distinct and sequential analytical steps. Rather it is an appellate direction to judges, quoted with approval countless times, to be applied to the evidence as a whole. The Story of What Happened [ 12 ] The complainant and the accused do not differ appreciably on marginally relevant, but not critical aspects of their stories. The complainant, age 23, and the accused, age 28, met on “Plenty of Fish” an internet dating and matching website. They were matched on the site’s criteria, and exchanged initial information about each other through this site.

However, they soon moved to other more direct, yet still internet based communication modes (Facebook and Instagram). Eventually they decided to meet face to face after about a week or so of this internet messaging. Adam, who was in the Peterborough area at the time attending a family function, invited S. to meet with him, get to know him better, and to hang out at his home in Elliot Lake from where they might engage in activities like fishing, or quadding (riding a four wheeler) or whatever struck their fancy.

S., who lived in Blind River, and who worked at […], (approximately twenty five minutes by car from Elliot Lake), managed to arrange a day off work. The plan was for Adam to pick up S. after work, drive together to his home, and spend overnight and the next day together in Elliot Lake. This plan materialized. He picked her up on Monday June 26, 2017 about 8:30 p.m. They stopped momentarily at the home of S.’s sister, M., where S. was then residing, to pack up and pick up an overnight bag containing some personal items and clothing, and drove to Adam’s home.

From this point, the two accounts are no longer the same. They weave in and out, as might be expected, with some mutually identical facts, some that are somewhat different, some completely different - and some that are contradictory. [ 13 ] The communication exchanges between Adam and S. before they actually met are unremarkable except that they provide a context for the story that each tells. To have hard copies of actual text messages is an advantage for the court as these are a permanent record that is not affected by the frailties of memory, or by the possible skewing of events after the fact.

They also provide some help in the credibility assessment process as they may contradict or qualify what a witness may say in testimony. [ 14 ] There were several events that took place over that evening and the next day. That these took place is admitted in the testimony of both S. and Adam. However, each has his or her own view of what actually took place. An examination of their versions of each incident show the disparities in their accounts.

These differences are critical in deciding what actually happened, the circumstance in which they happened, and most importantly, from a credibility point of view, whether these are honest, reliable descriptions of what took place. Marijuana and Alcohol

[ 15 ] The ‘hot tub’ incident is really a

preamble to later incidents of alleged sexual assaults. In many ways, it sets the stage for what took place later. According to the timeline described, Adam and S. left her workplace about 8:30 pm. Allowing some time to get her overnight bag and the drive to Elliot Lake, they were there by about 9:30pm. S. claims they got out of the hot tub by 12 midnight. What they did on arrival is not fully described except that they shared a joint (of marijuana) in Adam’s garage, a joint that was brought there by S., and except that Adam took her on a tour of his home.

Other than that, they talked and drank beer and mixed whiskey drinks. It is somewhat difficult to estimate how long this drinking went on, but by the alcohol consumption described by each, it was actually a relatively short time. S., in fact, made the statement in her court testimony that Adam did not offer her a drink for an hour after they arrived at his home. My inference from her evidence is that whatever drinking took place started at about 10:30 pm and ended at 12:00 midnight, a period of only 1 ½ hours, two hours at the most. [ 16 ] According to S., she had five cans of beer and three mixed whiskey drinks.

According to Adam, S. had five beer and they shared a 26 ounce bottle of Jack Daniels whiskey. S. says that they drank three quarters of the bottle. Even if they only drank half a bottle, and assuming they were drinking equally, they had six and a half ounces of whiskey each. At least one drink was in the hot tub as it had over- the-side drink holders that were used. Adam claims he was not really much of a beer drinker and admits to having three beer.

While I cannot speculate on what effect this total alcohol consumption over 1 ½ hours had on them, I can, by using common sense, infer that they were both intoxicated. In fact, I do not need to infer this at all. S. not only confirmed that they were both intoxicated, but she initially gauged Adam’s intoxication level at 10 on a range of 1 to 10. She reckoned her own at 7 on the same scale. There is no evidence of either drinking alcohol after they came out of the hot tub. [ 17 ] Intoxication not only affects the body’s motor functioning. It also affects things like observations and memory.

I say this because this admission of what, and how much, substances they consumed initially raises red flags for this court in terms of assessing both their testimonies. I say this notwithstanding the testimony of each of them that they were not totally inebriated. I have to accept this to be true, despite what common experience may say otherwise, although I accept it with more than a grain of salt. S., in fact, testified that one hour after leaving the hot tub, she was sober. I find this to be an extraordinary statement.

Moreover, the court has to take into account that what S. may have said was said by a person who, by her own admission, was on a of seven out of ten intoxication level not more than one hour prior to her first sexual encounter with Adam. Of course, it also has to take into account that Adam, according to S., was even more intoxicated than she was. [ 18 ] The alcohol did not materialize out of nowhere. There had been prior internet exchanges in which S., in answer to Adam, indicated that her drinks of choice were Rolling Rock, Pabst Blue and Tequila. Adam bought a 12-pack of Rolling Rock for her.

They mutually admitted to enjoying marijuana and looking forward to having a joint when they finally met. In her testimony, S. indicated she was only a social drinker. She also indicated she had no plan to drink on this occasion.

Clearly, her resolve in this regard was tepid at best. [ 19 ] So the first important thing that has to be kept in mind is that the court narrative of the sexual encounters between S. and Adam is one that was given long after that conduct took place, and the memory of what happened during these encounters was created in the minds of two people who were both intoxicated at the time by the consumption of considerable amounts of alcohol, and a minor amount of marijuana. RE: COUNT NO. 2 (June 26, 2017) The Hot Tub Incident [ 20 ] Adam and S. were in Adam’s hot tub on June 26, 2017.

They were out of the hot tub by midnight. I take judicial notice that June 26, 2017 was a Monday. The Crown initially alleged two separate counts of sexual assault, count one on the 27 th of June 2017 and count two on the 28 of June, 2017. However, at trial, the Crown amended count two to read the “26 th of June, 2017”. The information was amended on consent of the accused. The 26 th day of June 2017 ended at midnight. It was at midnight that S. and Adam exited from the hot tub.

Therefore, whatever sexual assault may have taken place on the 26 th day of June 2017 had to have taken place in the hot tub (or before). [ 21 ] The hot tub incident has some importance from the point of view of credibility. In particular, the testimony about what took place between these two young people, and their subjective feelings at the time, recounted more than a year later, are of some interest in terms of credibility.

[ 22 ] According to S., after they were at Adam’s home, Adam repeatedly asked her to have a hot tub with him. Adam, on the other hand, says he asked only twice. She claimed she declined and told him she was more comfortable in the house. Adam said she agreed the second time he asked. As they were in the hot tub, at most, for twenty or twenty five minutes, they entered it after 11:30 pm when both were well on their way to intoxication. Who is the court to believe? [ 23 ] The presence of the hot tub was no secret. Adam had told S. that he had one in his e-mails in the several days previously.

In fact, they had this exchange: “ Adam: Nice!! Nice when the shift flies by eh, then yeh get to kick back and enjoy some pints by a fire in the hot tub lol S.: I can’t wait lol! It’s busy tnite” [ 24 ] Their plans involved the possibility of going fishing or quadding. S. packed a bikini swimsuit. She claimed at trial that she did so in case she decided to go into Adam’s hot tub. Adam had reminded her in a message not to forget her swimsuit, and he did so, not for any fishing or quadding activities they might engage in, but rather for having a hot tub.

Ultimately, S. did change into her swimsuit and did go into the hot tub with Adam. [ 25 ] S.’s testimony and Adam’s testimony of what happened in the hot tub was very different and very subjective as might be expected of any two people recounting what transpired: (

a) They sat beside each other in the hot tub finishing their last drink; (

b) it was dark, except for the lights from the hot tub. (

c) Adam reached over with one hand and placed it on S.’s neck and shoulder and began to massage this area, without any invitation to do so. (

d) Adam then reached over with his other hand and, facing her, used both hands to massage S. in the neck and shoulder areas. (

e) Adam asked S. if she liked that. (

f) S. said “yeah” in response to Adam’s question (

g) Adam then pulled S. closer to him, began kissing S., breathing into and putting his tongue in her ear. (

h) Adam simultaneously pulled S. towards him so that she was straddling him (

i) The incident ended when S. asked to go into the home as the hot tub temperature was hot. Adam agreed it was hot and one could not stay in for too long. She said that she felt hot. She offered or suggested that they watch a movie they had been previously discussing. [ 26 ] The foregoing is the court’s description of what these two young people recounted as happening in the hot tub that they both agree upon. However, there are disparities in how each told his or her story that skews these bare facts. [ 27 ] Adam’s version – He never repeatedly asked S. to go in the hot tub. He only asked twice.

The first time they didn’t go because they were finishing the drinks that they were drinking. The second time, she agreed to go in the hot tub. He agrees he massaged S.’ neck and shoulders, and said that he inferred from his observations of her body language, that she was enjoying his massaging. He asked her if she liked it. Her response was that she smiled at him and said “yeah”. She never once verbalized or even intimated that he was too aggressive, or too rough or too forceful in his massaging. She never once mentioned that he was hurting her when he was massaging.

She never once told him to stop or gave any non-verbal indication that he was to stop. She never once said that she was not feeling well (until just before they exited and that was because of the heat). When he pulled her towards him, he had one of his hands on her thigh (or her hip) and she was straddling him. When he kissed her, she was kissing him back. The kissing went on for some time, according to Adam, for about ten minutes. Adam denies that he was choking S. at any time.

They had some conversation about the temperature of the hot tub and decided that they should get out of it. [ 28 ] S.’s version – While they were drinking and talking in the house, Adam kept asking S., “several times”, in fact, and would not stop asking her to go in the hot tub. She testified that she said that she “didn’t really want to” and was more comfortable in the house, but finally did agree, got changed, and went into the hot tub. She went just so that Adam could “shut up”.

Before she did agree to go, however, she said that Adam was staring at her, he was “intense”, he was making her uncomfortable, and he was creeping her out. She said she was afraid of Adam, before she went into the hot tub. She said that she was completely out of her comfort zone. In the hot tub,

Adam did not massage her gently. On the contrary, S. said that Adam, out of nowhere, “fairly strongly” grabbed her shoulder, dug his fingers into her neck and shoulder, was aggressive with her physically, and asked her if she liked that. S. ultimately admitted that she responded with a “yes” or a “yeah” and smiled. However, she was quick to say that this response was made out of fear because Adam had his hands on her neck and shoulders. She also said she saw a look in Adam’s eyes that made her feel that he was a predator. She described the look in his eyes as “just crazy”. She felt unsafe. She was afraid of him.

She didn’t know why she said “yeah” or yes when he asked if the she liked the massage. In fact, she says that the massage was not a massage. Adam, she reported at numerous times afterwards, had choked her when he was giving her a massage and when he was kissing her in the hot tub. However, she was confronted in cross examination with a video recording of her statement to police on June 29, 2017 in which she had said that Adam did not choke her.

Her response was “ He didn’t suffocate me, no, but he had both of his hands around my neck with pressure” [ 29 ] When Adam pulled S. closer to him and started kissing her, she claimed he was “grabbing her neck”. Her response to what she did was “ nothing ”. However, she was clear in her trial testimony that that his kissing her was uninvited and disrespectful “ grabbing a woman that didn’t ask to be grabbed ”. At trial, she described Adam’s conduct in the hot tub as “ toxic masculinity ”. She said that he had hurt her. She had no marks on her neck but she said she had neck pain for five days after the massage.

She said she froze and let him kiss her. In response to the question whether she was kissing him, she said only “ He kissed me” She only once conceded, or even mentioned that she had kissed him back, but qualified that she did so out of fear. She did not mention the duration of the kissing episode. As for her body language, S. said that Adam should have known from it that she was uncomfortable or scared.

She described it as “closed off, arms crossed, not like even really looking at him, staring off, like not even looking at him …” [ 30 ] In cross examination, S. was asked why she didn’t end the evening if she was afraid and creeped out by Adam in the hot tub. The Crown objected to this as it might well have been an objectionable question, and in the realm of those that are impermissible as they are based on the stereotypical notion of how sexual assault victims are expected to behave.

However, I ruled that the question could be asked because the hot tub incident took place, as far as I could determine, before either of the sexual assault incidents that were charged in the information. The information, at that time, alleged the sexual assaults had taken place June 27 and June 28, 2017. The hot tub incident was concluded on June 26, 2017. The Crown subsequently changed the date of one sexual assault, mid-trial, to June 26, 2017 presumably to encompass the hot tub incident as one of the sexual assaults charged. S.’s answer was that: (

a) she didn’t know where she was (

b) she didn’t have a [working] cell phone (

c) she didn’t feel safe (

d) she was afraid to die that night (

e) she was afraid (

f) she was in flight or fight mode (

g) her body was in shock [ 31 ] The two versions told from different perspectives are qualitatively very different accounts of the same event. The court is required to make its decision on evidence that is contradictory at worst, and at best, very subjective. Decision on Count 2 (alleged to have been committed June 26, 2017) [ 32 ] With respect to count two, which was amended to indicate the occurrence date from the 28 th of June,2017 to the 26 th of June 2017, and on the evidence presented, could only have included the hot tub incident, I find the accused not guilty.

I do so for the following reasons. [ 33 ] Following the Supreme Court of Canada guidance in R. v W. (D.), I believe the accused’s version with respect to the hot tub incident. I do not accept the complainant’s. Accordingly, I must acquit. [ 34 ] When I say I believe the accused’s version, I don’t mean to suggest that I believe everything he said is gospel. I believe enough of his story to conclude that it was more realistic, more plausible, and more reasonable a narrative of what actually took place.

Moreover, in terms of how the story was given, it was given in a straight forward fashion, with little embellishment or exaggeration, stuck pretty well to the questions that were asked and hung together logically. Additionally, in cross examination, which, from the court’s vantage point, was more important to test the veracity of what he recounted, he was not shaken. He clung to his factual recounting pretty closely, and was internally consistent throughout virtually all of his testimony.

[ 35 ] On the other hand, I had much more difficulty with the complainant’s testimony about the hot tub incident. In chief, she clearly said that Adam “ started choking me, and grabbing my neck and squeezing my neck ”. During the course of the questioning of this witness, she was confronted with a portion of a video statement she had given to the police on June 29, 2017, two days after she left Adam’s home. At trial, she said that she had told the police that Adam had “ choked” her in the hot tub.

When the statement was played to her, it was apparent that she had said to the police that Adam had not choked her in the hot tub. Her response, when cross examined, was not to concede that her trial evidence was wrong, but was to try to minimize her discrepancy by saying: “He didn’t suffocate me, no, but he had both of his hands around my neck with pressure ”. [ 36 ] A similar disparity in her responses was with respect to what she said in response to Adam when, while he was massaging her, asked her if she liked it. In chief she said that she “ nodded and did say yes” .

In her statement to the police on June 29, 2017, she (apparently) said “… I just smiled and said ‘yeah’ like it is okay”. When cross examined, she initially said “ I didn’t smile.” Then she said she “ made an awkward face ”. Then when pressed further about her statement to the police, she conceded that to the police she said “ Yes, I said I smiled ” and finally she came full circle, clearly with some reluctance and admitted “ I guess I smiled”.

Yet later in cross examination, she again reverted to denying that she had smiled, when she said “ and like, when he asked me if I liked that, like, I didn’t smile, like even though I said I did on my video statement, because, like, I’m in shock” [ 37 ] Although the statement of June 29, 2017 to the police was clearly disclosed by the Crown to the defense, it was not produced as an exhibit at trial despite requests by the court. However, the complainant was cross examined on what she had told the police and portions of the statement were ether read to the complainant or played for her.

In her cross examination, she disagreed with what she reported she had told to the police, not only about “choking” or about what she had answered to Adam’s question, but also about her own state of sobriety. In her statement to the police, as read to her, she said “ I was intoxicated, and I was drunk, I didn’t eat that day barely.” However, in her cross examination she said of what she said to the police “ I didn’t say I was intoxicated or drunk. I said I had the effects of alcohol, but I was coherent”. Clearly, she was giving different versions of her state of intoxication.

However, when she was asked in chief, she had placed herself at level 7 on a scale of 1 (sober) to 10 (drop out drunk). She was being inconsistent. I judged that her answers were slightly different when it was to her advantage for them to be so. [ 38 ] How did she rationalize her statement to the police which, in temporal terms, was made much more proximate to the events recounted therein (two days) than the statements she made at trial (in chief, twelve months, and in cross examination, 18 months)?

Firstly, she said that she was “ still in shock ” from the incidents with Adam two days prior, when she gave her police statement. Secondly, she said, in answer to the question put to her in cross examination: “Q. So, is it your position that an entire statement on June 29 th is false because you were in shock or …” “A. No, not the entire one. The only thing I was reporting was a sexual assault, and nothing about the hot tub incident ” [ 39 ] So, S., herself, admitted that she was not reporting to the police the hot tub incident as having been a sexual assault on her.

Moreover, her problematic and contradictory statements at different times on several key issues made it impossible for me to conclude what was the truth and what was not. The statements of Adam, by contrast, were much more credible with respect to the hot tub incident. Finally. The hot tub incident is the only factual occurrence that could possibly be relied upon to found the allegation in count 2 of the Information as having taken place on June 26, 2017. I find that no sexual assault took place on that day in the hot tub. Paring down the facts to what essentially happened, both S. and Adam went into the hot tub.

There was no coercion. The decision was a mutual one. Adam massaged S.’s neck and shoulders, admittedly unasked. She told him that she liked it when he asked her She did not tell him he was hurting her or that he was too aggressive. He proceeded to kiss her. She made no objection, nor did she pull away. Adam said that she kissed him back, and I accept that as reasonable explanation of what happened. I accept that this was a non-verbal signal from S. to Adam to continue. [ 40 ] There were other facts mentioned in the evidence with respect to the hot tub incident that also raised some flags.

While they formed part of my disquiet about S.’s evidence, I only mention them as time does not permit me to go into more detail. They include: (

a) That consuming the amount of alcohol she admits consuming in the time that I calculate she had to consume it, did not affect her recollection of events and it left her still coherent; (

b) She was clearly estimating some things rather than trying to be exact: For example, she said that she and Adam consumed their alcoholic drinks in “ about four hours, four to five hours ”. If this statement is anywhere near correct, and they stopped at midnight, they must have started about seven or eight o’clock, an impossibility because she was still working then in Blind River, and Adam was nowhere close to her.

(

c) That she was still in shock when she was making her video statement to the police two days after the incident, and the intimation that what she told to the police should be discounted if it did not agree with what she was saying at trial; (

d) Her entire story about her cell phone, and its low charge (at one time, 10% and at another 15%), no indication that she even tried it, and intimating in chief that Adam did nothing about it, but then admitting in cross examination that he did look for a charging cord but that it was incompatible; (

e) That Adam’s predatory looks were observed by her in the hot tub notwithstanding that the lighting was poor; (

f) That despite that she said Adam was choking her, by her own admission, there were no bruises found on S.’s neck or shoulders by the hospital when she went there the next day. RE: COUNT NO. 1 The Story of What Happened [ 41 ] This count in the information is alleged to have taken place on June 27, 2017 – which was a Tuesday. The sexual assault that is charged on that date consisted of three distinct events. They had sexual intercourse the first time after they exited from the hot tub, got dressed in nightwear, and were watching a movie on television. This was in the hour after midnight.

The second time was in the morning of the same day when they awoke. For identification purposes and simplicity, I refer to the post midnight sexual encounter as the “midnight sex”, and the post awakening encounter as the “morning sex” [ 42 ] However, sexual intercourse was not all that S. and Adam did. They also engaged in oral-genital stimulation, he with his mouth in S.’s vaginal/clitoral area, and/or she with her mouth on Adam’s penis – or both. [ 43 ] The third event of sexual assault took place in Adam’s shower stall, where S. was taking a shower following their morning sex.

This did not involve sexual intercourse. It involved a ten minute episode, more or less, during which Adam entered the shower, again uninvited, kissed S., played with S.’s “boobs” and bit her nipples while she was showering. I refer to this as “shower sex” [ 44 ] While the foregoing is the bare bones of what took place, there is a lot more detail that emerged during testimony at trial. Both Adam and S. more or less agree that the sexual encounters consisted of the above events.

But the spin each puts on these events makes them different as night and day. [ 45 ] Adam’s version of the “midnight Sex ” – After changing into night wear after the hot tub, they were both on the sofa discussing the episode of the television show they were watching. Adam looked over to S. who, he said, smiled at him. He moved closer to her and began to kiss her. He says she was kissing him back. He took off S.’s shirt. She allowed him to do that. She covered her stomach with her hands, not her breasts. He thought she was shy. He said “ You don’t have to cover yourself. You’re beautiful” .

He says she dropped her hands to her sides at this point. He straddled her body which was lying face up on the sofa. Then he took off her pants. She covered her vagina with her hands. Adam did not believe that anything was wrong at this point. Earlier in the evening, S. had said that she wasn’t happy with her body. She said nothing when he took off her shirt, and nothing when he took off her pants. Adam agrees that he had an erection and was grinding on S. All the while, Adam and S. were mutually kissing. Adam then moved down to give S. oral sex. He said that S. had her legs apart during this oral sex.

He disagrees that he was rough in this. He denies that S. said “ow”. What she said to him was “Please get a condom”. He interpreted this as S.’s ‘okay to proceed’ to him. He did so, was away for less than a minute, and put it on. When he returned, S. had her legs apart. They then engaged in sexual intercourse in the missionary position on the sofa. Adam ejaculated and the intercourse soon thereafter ended. [ 46 ] Overall, the midnight sex lasted about twenty minutes. Adam denies that S. said “no” or said ”stop” even once during this whole episode.

He said that she didn’t complain or give any sign that she was in distress or was uncomfortable or didn’t feel good. He said that S. seemed to enjoy the sex. He saw no sign of fear in her eyes. [ 47 ] Adam said that he was not drunk during this time, or even in the hot tub. He also did not think that S. was drunk. Afterwards, they engaged in some small talk about the next day’s plans Then, according to S., Adam “passed out” and fell asleep before S. She went to

the bathroom, which was off of the bedroom. When she returned she lay down beside him and also fell asleep. S. felt that at this point, Adam was “drunk”, and in her own self estimation, she was “sober”. [ 48 ] S.’s Version of the Midnight Sex – She was laying on the sofa; Adam was sitting on the sofa. She told him she didn’t feel good. She felt his “ strong presence ” staring at her, and when she looked at him, he was smiling at her. He then “jumped on me and all of a sudden he’s on top of me, and kissing me aggressively”. He put his tongue in her ear .

He proceeded to take her shirt off aggressively and “ I said no . He ignored me”. Adam did not stop. S. covered her stomach and her breasts. He had her pinned and he was heavy. He had his weight on her body, his arms on top of her arms, and her hands pinned down at her sides. He proceeded forcibly to take her pants off. She covered her vagina. She said “ no ” and pushed him off of her, but Adam moved her hands and roughly shoved his face on her clit area in her vagina. Adam was rubbing his face in it, and it was “disgusting”. He was very aggressive and painful.

There was, according to S., “ a massive amount of pressure and it hurt ” She said “ ow ”. The oral sex lasted about ten minutes. S. said that everything in her body was telling her that she “ was not safe ”. She was scared. She wanted it to stop. She did not want it to happen the whole time. She did not say anything to him. But she did not consent to this oral sex. [ 49 ] Adam stopped the oral sex and started kissing S. again, his penis was hard and he was pushing it on her vagina. He pulled it out and was pushing it on her vagina grinding on her. He took his pants off and was rubbing his penis on her.

She pushed him off and he stood up. At this point she asked him “ Can you please get a condom ”. Why she did so was because “ he was going to put it in me, he tried putting it in me ” and “He wasn’t going to stop nonetheless ”. He complied, returned, and put the condom on himself. He laid S. down, and they had sexual intercourse. They were in the missionary position. They did not continue in that position. S. said that Adam got up, rolled her over, bent her over so that she had her knees on the sofa facing the back of the sofa. He then entered her vagina from behind. They continued to have sexual intercourse.

As he was re-positioning her, he pulled her hair, pulled back on her shoulders aggressively and forcefully, hurting her back. This whole intercourse episode lasted for twenty minutes when Adam ejaculated. S. described her feelings during this intercourse. She was “ losing her mind ”. She did not enjoy his “ terrible ” behaviour. She hated it. She was scared. [ 50 ] There was remarkably little conversation between them during this midnight sex. S. described in chief two times when she had said “no”. One was when Adam was taking her shirt off. The other was when Adam, was taking her pants off.

In her testimony, she claimed she had said the word “no” four times and had said “ow” when Adam was performing oral sex. S. also said, when cross examined, that she had said “no” four times when Adam took her shirt off, and did not say “no’ at any other times. In cross examination, S. also said that she had “ quietly said ‘stop’ ” when Adam was orally penetrating her, but “ he didn’t hear that ” because “ I talked low ”.

In the same passage, however, S. said that Adam “ did hear me say ‘no’, but he kept on going, so like when I said ‘ow’, he didn’t do anything, he didn’t stop, and then I said ‘stop’ ” [ 51 ] Two very different versions each from a very subjective point of view.

But aside from the failure of Adam to indicate that part of the midnight sex also took place from a rear entry position, the basic factual events of what actually happened were essentially the same – except for the glaring contradiction that S. claimed she said “no” four times, “ow” once, and ‘stop’ once, and that Adam said that she said none of these, and that the only thing he heard S. say to him was “ Please get a condom”. [ 52 ] As mentioned, there were two other episodes of sexual contact.

However, I will by-pass these for the moment and skip to what happened after all the sex was over. [ 53 ] After the shower sex, they both went out onto the back deck where Adam had a coffee and S. had a cigarette. According to Adam, they spoke about what they would do that day. He suggested they go for lunch to the Laurentian Lodge, a restaurant some 20 minutes away. S. said that she was hungry. S. wanted to have some lunch. They did so, and according to Adam, they held hands on the way there. They talked about their prospective plans for the day.

At the lodge restaurant was a small family dining, and some other patrons outside. Adam knew the waitress and they exchanged a few words. S. and Adam both ordered and ate their lunch. The spoke about how nice the lodge was, and of looking over the grounds. After lunch, Adam took S. on a tour of the grounds. While walking the grounds, S. pulled her hand away from Adam’s. On the way back to his home, they did not hold hands. S. said that she planned to do laundry that day as it was her only day off work. She said she wanted to go home. Adam drove her home.

On the way, they discussed their next meeting. [ 54 ] Her sister was at home but did not answer the door. According to Adam, S. wanted him to simply drop her off, but he declined and he called her sister with his phone and she opened the door. According to S., she asked Adam to call her sister to unlock the door for her. The sister was there but just on her way out. Adam dropped her off around 3:00 or 3:30 pm. S. didn’t kiss him or show any other sign of affection. She merely said “It was nice to meet you” or “thanks for the ride” [ 55 ] S. went to bed and slept after she got home.

There was one other exchange between Adam and S. after that. Adam texted S. about 6:00 pm the same day he had dropped her off with a relatively innocuous message. She replied at about 10:00 pm also with a text

message which said: “Thank you for meeting me but I wasn’t as comfortable as you thought last night or even today. It was really weird for me. I didn’t want this to happen. Just wanted to get to know you, but I hope you take care” S. cut ties to Adam on all social media. He never did respond to her last message. [ 56 ] How did these encounters end up as criminal charges?

When S.’s sister returned, and she and S. were discussing what had happened, the sister apparently asked S. if she thought she was raped, and then said to her “S., you were raped.” What followed was S.’s visit to the hospital, and her video interview by the police on June 29, 2017, and the laying of the information.

The Law With Respect to Sexual Assault applied to the Midnight Sex [ 57 ] While the conduct of S. in the hot tub was what persuades the court that she verbally consented to the sexual touching that took place there, and also responded in the kissing which is another sign that she was consenting to this activity, the same cannot be said of her engaging in any of the midnight sex. [ 58 ] The appellate courts have, in recent years, consistently held that any stereotypical expectations of a sexual assault victim have no place in sexual assault trials.

No does any questioning that relies on such stereotypical expectations [3] .

Such questions will only be permitted when there is some good reason to ask them that has some relevance to the proceeding. [ 59 ] For example, when assessing credibility of a complainant, some questions may well be relevant but not if they are based on expected post sexual assault behaviour. [4] [ 60 ] What is important in the sexual assault trial is whether the complainant consented to the sexual activity. “Consent” means, for purposes of s. 271 (sexual assault) the voluntary agreement of the complainant to engage in the sexual activity in question. [5] [ 61 ] Contemporary jurisprudence has interpreted “consent” in the analysis of both the actus reus of the offence as well as in the mens rea.

I must consider the totality of the evidence with respect to the conduct of the complainant. In doing so, I conclude that she did not consent to either the oral – genital activity, or to the sexual intercourse that occurred during the midnight sex. Her conduct was neither ambiguous nor contradictory with respect to the midnight sex activity. She claims she feared Adam, and even though her fear that she might die may have been far fetched, she subjectively held this belief. Her state of mind need not be reasonable. [6] The actus reus is proved when three elements are established: (

a) touching (

b) the sexual nature of the contact (

c) the absence of consent The absence of consent is subjective and is determined by reference to the complainant’s internal state of mind towards the touching. The accused’s perception of the complainant’s state of mind is irrelevant.

The complainant need not express her lack of consent for the actus reus to be established. [7] [ 62 ] The mens rea of sexual assault is the intention to touch, knowing of, or being reckless of, or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [8] In this case, Adam unquestionably intended to touch S. sexually during the midnight sex, and he was wilfully blind, or at the very least, reckless as to S.’s lack of consent. He never asked her if she was in agreement with what he was doing, either before he did it or while he did it.

She never gave her consent verbally, or by any gesture. If there was any behaviour on her part that could conceivably have been an expression of her consent, it was her asking him to get a condom. Whether she also said “no” or ‘stop’ is a question that I struggle with in terms of whether it was said and when. Ultimately, I believe she did say “no” to Adam at least twice, and he was too pre-occupied with what I view as his own sexual gratification to pay her

any attention. In any event, as I understand the law, a complainant is not required to offer even a minimal word or gesture of objection. Nor is a lack of resistance by a complainant to be equated with consent [9] . [ 63 ] As I understand Adam’s defence, it is that S.’s lack of consent is a conclusion that is frail in light of the many inconsistencies in her statement to the police, her testimony in chief at trial, and her testimony at trial when cross examined. He argues that her credibility is so poor that she should not be believed.

He does not point to any specific communication of S.’s consent to oral – genital activity, other than that she had her legs open when he was engaged in that activity, and she also had her legs open when he returned with a condom. Those two examples are a far cry from any clear, communicated consent to the activity in question. In the oral-genital activity, in fact, he was already engaged in this when she had her legs open, not before he began it. The only other communication relied upon by Adam was S.’s request for him to get a condom. This communication was at best ambiguous.

It was, in the circumstances in which it was said, equally reasonable to conclude that S. wanted it for her own protection (eg from pregnancy or a sexually transmitted disease) than to conclude that she was desirous of, and consenting to, sexual intercourse with Adam.

Moreover, getting the condom had nothing to do with the oral sex which was completed by the time that Adam got the condom. [ 64 ] In the context of mens rea, and for the purpose of determining whether there was an honest but mistaken belief in consent, consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in the sexual activity in question.

The accused’s speculation of what was going on in complainant’s mind provides no defence. [10] [ 65 ] Adam may well have been of the belief that what he perceived to be a reciprocation by S. to his conduct with her in the hot tub was tantamount to her consent, and carried on to his midnight sex with her. However, the law is clear that consent must apply to every different sexual activity at the time that it is engaged in. [11] Thus she could not have given her consent in advance to the midnight sex activities, nor could her consent to those activities be reasonably inferred from her hot tub utterances or conduct.

The midnight sex activities were, qualitatively, far removed from the activities in the hot tub. [ 66 ]

Section 273.2(

b) C.C.C.provides S.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 (

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 . [ 67 ] Adam not only took no reasonable steps, he took no steps at all to ascertain if S. was consenting to any part of the activities that took place during the midnight sex. [ 68 ] Accordingly, I find Adam guilty on count 1 of the information (offence date June 27, 2017) on the charge of sexual assault. I do so based on the events that took place in what I have referred to as the midnight sex.

For further clarity, it is the disrobing of S. by Adam, the oral genital conduct of Adam with S., and the sexual intercourse in which they engaged. [ 69 ] For the same reasons, I also find that the shower sex was a continuation of the midnight sex although temporally distanced from it. All of the elements of the sexual assault were present and my comments with respect to the failure to ascertain if the complainant was consenting apply equally to this activity. [ 70 ] However, I have a reasonable doubt about whether the morning sex was consensual or not. It started with mutual kissing.

It progressed to mutual oral - genital activity. It also involved sexual intercourse which also was mutual . S. did not say ‘no’ or ‘stop’ or ‘ow’ or anything else during the morning sex. Her conduct could reasonably have been construed as consensual. She did in fact, have an orgasm while Adam was performing oral sex on her. While I accept the Crown’s expert evidence that a woman can climax if sufficiently sexually stimulated, even if it is against her will, I am not sure if this sexual episode was against her will.

Moreover, she appears to have provided oral genital stimulation to Adam with not one word having been said by him or her. He did not ask her for oral sex. She appears, if not voluntarily, at least without objection or hesitation, to have engaged in fellatio. Part of the sexual intercourse they engaged in during this morning sex also described her on top of a supine Adam, a position where she would be more likely to have control over what was going on than him. I discount her statement that Adam picked her up bodily and placed her on top of him.

She was 185 pounds; he was less, and although, in her estimation, he was the stronger of the two, it strains credibility that he could have picked her up at all. Her testimony about this morning sex suggested an attitude that she had already been violated the night before, so what difference

would this morning sex make? Perhaps it was not this way at all. However, I am left in some doubt. In any event, the sexual assault ismade out with the midnight sex and the shower sex. [71] Ultimately, Adam’s major mistake in this sexual encounter was failure to communicate. Communication is a two way street andAdam took, at best, baby steps along this street. The days are gone when sexual activity is governed by an attitude of “how far can I gobefore there is opposition?’.

The law places an obligation on participants in sexual activities to ascertain the consents of their partners tothe activity intended, and if more than one sexual activity is intended, the consents to these others. Moreover, as the law evolves, it isclear that the consent to sexual activity is becoming more and more one that has to be clear, specific and unequivocal. I expect that Adamis somewhat dumbfounded that he is facing these charges. He probably feels that everything that happened was consensual. In fact, heprobably believes that he provided some sexual pleasure to S.

Clearly, from her testimony, he was wrong on both counts. Released: September 12, 2019 Justice John Kukurin [4] See R. v. A.R.D.J., 2018 SCC 6 , 2018 S.C.J. No. 6 | [2018] A.C.S. no 6 | 2018 SCC 6 | 2018 CSC 6 | [2018] 1S.C.R. 218 | [2018] 1 R.C.S. 218 | 144 W.C.B. (2d) 295 | 43 C.R. (7th) 207 | [2018] 4 W.W.R. 433 | 65 Alta.

L.R. (6th) 38 | 422 D.L.R. (4th) 469 | 2018 CarswellAlta 252 at para 2 “the trial judge committed the very error he had earlier in his reasonsinstructed himself against: he judged the complainant's credibility based solely on the correspondence between her behaviour and theexpected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. [6] See R. v. Ewanchuk, (SCC), [1999] S.C.J. No. 10 | [1999] A.C.S. no 10 | [1999] 1 S.C.R. 330 | [1999] 1R.C.S. 330 | 169 D.L.R. (4th) 193 | 235 N.R. 323 | [1999] 6 W.W.R. 333 | J.E. 99-543 | 68 Alta.

L.R. (3d) 1 | 232 A.R. 1 | 131 C.C.C. (3d) 481 | 22 C.R. (5th) 1 | | 41 W.C.B. (2d) 122 | 1999 CarswellAlta 100 at para 26 “The absenceof consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards thetouching, at the time it occurred” [7] See R. v. Barton, 2019 SCC 33 , [2019] S.C.J. No. 33 | [2019] A.C.S. no 33 | 2019 SCC 33 at paragraph 89 “Forpurposes of the actus reus,… the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state ofmind is irrelevant.” [9] See R. v. M.L.M. (SCC), [1994] S.C.J.

No. 34 | [1994] A.C.S. no 34 | [1994] 2 S.C.R. 3 | [1994] 2 R.C.S. 3 | 166 N.R. 241 | J.E. 94-903 | 131 N.S.R. (2d) 79 | 89 C.C.C. (3d) 96 | 30 C.R. (4th) 153 | 23 W.C.B. (2d) 274 | at para 2 The majority of the Court of Appeal was in error in holding that a victim is required to offer some minimal word or gestureof objection and that lack of resistance must be equated with consent.