r v. ANDREW MARSON, 2022 QCCQ 7299

R. c. Marson 2022 QCCQ 7299 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-216705-217 DATE: October 25, 2022 ______________________________________________________________________ BY THE HONOURABLE FLAVIA K. LONGO, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. ANDREW MARSON Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ NOTE: AN ORDER HAS BEEN MADE PURSUANT TO CRIMINAL CODE

SECTION 486.4 PROHIBITING THE PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THIS MATTER. [ 1 ] The accused stands charged with having sexually assaulted M. L. on September 11, 2016. [ 2 ] After having communicated briefly through Facebook Messenger and text messaging, the parties were acquainted for the first time at the complainant’s dorm. They met in the lobby of the building and went to the complainant’s room where she alleges that he sexually assaulted her by vaginally penetrating her with his penis without her consent.

The accused denies having penetrated her vaginally but admits that other forms of consensual sexual activity took place. [ 3 ] Both versions are similar from the time that they met at the reception of her dorm building until the end of their initial conversation in her room. From that point on, their stories differ. The variations in their versions of what transpired in the complainant’s dorm room go to the heart of the infraction and the question becomes whether the accused penetrated the complainant’s vagina with his penis without her consent.

The uncontested facts [ 4 ] They first saw each other at the McGill gym. He was 26 and she was 19. They were both members of the same Facebook fitness chat group, and the accused initiated the contact by sending her a message through that web page. [ 5 ] On September 7, they exchanged flirtatious messages through Facebook Messenger [1] and text [2] , and discussed fitness, exercise and spoke about themselves.

Additional text messages were exchanged [3] in the hours that preceded the incident which forms the basis of the accusation. [ 6 ] On September 11, she went to get him downstairs near the main entrance of her dorm building and brought him up to her room which was on the [...] floor since he did not have an access card to the residence. It was the first time that they had a face to face discussion. [ 7 ] The residence where she lived is comprised of 12 floors with several small rooms on each floor that are stuck to one another.

The complainant’s room had a desk and storage with a closet, a twin bed on the left side with a window and a mini fridge. [4] [ 8 ] When they arrived at the complainant’s dorm room, she sat on her desk chair and the accused sat on the edge of her bed. They spoke for 20-30 minutes. Further to this, their versions diverged. The complainant’s version after she spoke with the accused in her room [ 9 ] During their conversation, the accused pulled the arms of her desk chair towards him as he sat on the edge of the bed.

He began to kiss her and eventually took her into his arms to flip her so that he could lay her down onto her back on the bed. She faced the ceiling and the accused was on top of her while they kissed. [ 10 ] After a few minutes of kissing in this position, the complainant told him that she would not agree to anything more than kissing. She does not recall the accused having answered to this and remembers that he took off his shirt and his pants as he hovered over her. She was confused as to why he was undressing since she told him earlier that she would not agree to anything more than kissing.

[ 11 ] It was difficult for her to move because he was much heavier than she was. As he lay on top of her, he removed her pyjama pants and her underwear. Their stomachs touched and he penetrated her vagina with his penis. Her legs were spread on the bed, not high up in the air as if she was welcoming intercourse. [ 12 ] His left hand was on her mouth to keep her quiet and he pinned her down with his right hand. The penetration lasted 5 minutes and she did not move. She was frozen and terrorized fearing that her neighbour would hear them and think that they were having sex since the walls in her room were thin.

She felt helpless. [ 13 ] She said no words to him during the sexual activity other than warning him that she would not agree to anything more than kissing. She believed that when she mentioned this to him, he understood that he did not have her consent and that she did not wish to have sex with him. [ 14 ] At a certain point, she succeeded in moving herself back towards the wall behind her and pushed him away. She told him: «We’re done, it’s enough». [ 15 ] Once she pushed him away, he got dressed and she did the same. He acted like everything was fine and told her that they should go for coffee sometime.

She told him that she was having dinner with a friend at 5 pm in order to make him understand that she did not have time to talk. She wanted him out of her room and out of her sight. She was afraid and could not believe what happened to her. [ 16 ] They took the elevator down together. He exited the building and she went to the cafeteria. [ 17 ] After the incident, she was in denial and questioned herself. She spoke to a male friend about it in the evening, and during the following month, she told her parents and her friend C.

J. who was also a fellow student. [ 18 ] After the event, she had panic attacks and felt stressed about what happened. On October 13, 2016, she called C.J. and told her that she was not feeling well and that she wanted to call the police. [ 19 ] C. J. dialed 911 and when the police arrived, the complainant informed them that she had been sexually assaulted one month earlier. She heard back from the authorities in January 2017 and was asked to give a deposition at the police station. She declined at that time since she was not ready to start the legal process.

She was in her first year at McGill and had a difficult semester. She decided to reactivate her complaint in March 2019. C. J.’s version [ 20 ] During the month of September 2016, C. J. noticed that the complainant was behaving strangely. On October 13, 2016, the women spoke on Facebook Messenger and the complainant told her that she was sexually assaulted the month before. C. J. went to the complainant’s room to talk and she was given details of the incident. According to C.

J., the complainant was distressed, nervous, panicked and uncomfortable while they discussed the event. [ 21 ] She called 911 on behalf of the complainant. When she made the call, the complainant was unstable, scared and panicked. She was overwhelmed by her emotions and did not feel strong enough to call the police herself. The complainant was met by the police in her room without C. J. and when the meeting ended after an hour, she exited the room crying. Her disposition was not good. [ 22 ] C. J. was not cross-examined by the defence and the Court has no reason to disbelieve her testimony.

The accused’s version after he spoke with the complainant in her room [ 23 ] As they were talking, the accused asked her to come towards him. She smiled, smirked and asked him why. She rolled towards him in her chair, he leaned in half way and she did the same. They began to French kiss and she was still sitting on the chair but moved herself close to the edge of the bed. [ 24 ] He put his arms around her hips and scooped her up to lay her onto the bed on her back. Her head was on the pillows close to the wall and they faced one another.

He touched her along the breast and hip line while she touched his hips and chest. [ 25 ] The mutual touching lasted about 2 minutes. The accused reached down, grabbed her pants from the waistband and slid them off slowly with both hands. She was naked from the bottom down and she placed his head to her groin. He gave her oral sex and kissed the inside of her legs for about 5 minutes. She reacted with pleasure and positioned him to continue. [ 26 ] During the oral sex, he unbuckled his pants and took them off.

He slid up onto his knees to her face and removed her shirt while she sat up in a 90 degree angle. [ 27 ] There was chemistry between them so the complainant laid down and he continued to kiss and caress her breasts. They were torso to torso with their faces aligned. No words were exchanged between them, only moans and signs of pleasure. [ 28 ] The kissing continued, they were groin to groin and the accused was between her legs that were spread open. There was no discussion about using a condom and he made an attempt to insert his penis. She said no and he did not insert his penis in her vagina.

They kissed and touched. He gave her oral sex again and she reacted with pleasure. She held his head and caressed him. This lasted about 2 minutes. [ 29 ] The accused stopped and laid on his back. She climbed on top of him and straddled him. She rubbed her vagina on his penis and he asked her if she liked it. She said: «What?», he repeated the question and she answered: «Yes». [ 30 ] She slid her head to his penis and fellated him for a few minutes. He moaned and told her that he liked it. He reached down with

his left hand to pull her up by the hair in order for her to disengage from his penis. He pulled her up gently until they were face to face and she was on top of him. She straddled him and pumped him as they continued to kiss. It was clear that she was enjoying it since she performed oral sex on him and caressed him. [ 31 ] He pulled up to put her back on the bed on her back in order to attempt to penetrate her vaginally a second time. There was no discussion between them. As he went to insert his penis, she said no and he responded «Alright». He withdrew himself and ceased touching her.

He got on his knees on the edge of the bed and collected his clothes off the floor. When he did this, she remained calmly on the bed and watched him put his clothes on. [ 32 ] They dressed together and the accused asked her if there was something that she would be more comfortable doing like getting coffee since she said “no” twice to vaginal intercourse. She responded «No», since she had dinner plans with a friend. She told him to call her tomorrow. [ 33 ] They left the room and took the elevator down to the main floor together. The complainant was in a normal state, they interacted and he said goodbye to her.

He was in her room for about one hour. [ 34 ] Both parties testified about instances when they saw each other at the McGill gym after the incident. These sequences will not be referred to in this judgment since the Court does not deem it necessary for the resolution of the issue at hand. ANALYSIS The Law [ 35 ] The fundamental rule in Criminal Law is that the burden rests on the shoulders of the Prosecution to prove all the essential elements of the alleged infraction beyond a reasonable doubt.

The presumption of innocence dictates that the accused has no burden to meet. [ 36 ] The Court must decide if in light of all the evidence presented, the essential elements of the infraction have been proven beyond a reasonable doubt. [ 37 ] As per the teachings of the Supreme Court of Canada in R . v.

W.(D.) [5] , the trial judge must assess credibility issues according to the following test: [ 38 ] The first and second steps of the assessment require the Court to concentrate on the testimony of the accused in light of the other evidence in the case. [6] Firstly, the Court must decide if his testimony is believed. If his testimony is believed, he must be acquitted. If the Court does not believe his testimony, the Court must determine if it is left in reasonable doubt by it with respect to his guilt. If this is the case, the Court must acquit him.

The Court’s evaluation of his testimony during these two steps must be done while taking into account the evidence as a whole. Finally, if his evidence does not raise a reasonable doubt, the Court must evaluate if on the basis of the evidence that it does accept, the prosecution has made evidence beyond a reasonable doubt of the guilt of the accused. The essential elements of sexual assault [ 39 ] The Prosecution must prove the actus reus and the mens rea of the offence beyond a reasonable doubt.

The actus reus of sexual assault consists of undesired sexual touching and three elements must be proven beyond a reasonable doubt in order for the actus reus of the offence to be established: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. [7] [ 40 ] The first two elements are objective and require proof that the accused’s actions were voluntary. The third element of the actus reus , the absence of consent, is subjective.

In the context of the actus reus of the offence, consent means that the complainant in her mind wanted the sexual touching to take place. [8] It is assessed subjectively and determined by reference to the complainant’s internal state of mind toward the touching, at the time it occurred. [9] This is why the term “subjective consent” is preferred. [10] [ 41 ] The accused is entitled to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If the Court believes the complainant that she subjectively did not consent, the Crown has discharged its burden to prove the absence of consent. [11] [ 42 ] The mens rea of sexual assault is established when the following two elements are proven beyond a reasonable doubt: (

i) intention to touch, and (ii) knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. [12] [ 43 ] The prosecution must demonstrate beyond a reasonable doubt that the accused knew that the complainant did not consent to the sexual acts in question or that he was wilfully blind or reckless in acting on an assumption of consent without receiving or eliciting consent to the sexual activity. [ 44 ] The defence presented submissions in order to demonstrate that the complainant’s version should be discredited or that her version is less worthy of belief. [ 45 ] Here are some examples: • At the end of the event, both parties dressed themselves in the complainant’s room and she made no attempt to escape or to save herself. [13]

• They left the room together after the event and they walked down the hall. Why did she not scream or yell? • They took the elevator together and she made a conscious choice to be alone with the accused who just raped her.

It is striking that there was no overt reaction and it does not fit with what the complainant portrayed as having happened. • The complainant’s version could be the truth but there is no DNA evidence and no independent witness to confirm her story. [ 46 ] The Court deems that these arguments constitute prohibited reasoning in violation of the rule against stereotypical inferences [14] since myths and stereotypes have no place in the courtroom. [15] Regarding the absence of DNA evidence or independent corroboration of the incident, confirmative evidence [16] is not required to justify a prosecution and/or a conviction for sexual assault.

The application of the law to the facts [ 47 ] The Court will now begin by assessing the testimony of the accused. He ascertained that he never vaginally penetrated the complainant but admits having tried to do so on 2 occasions during the course of their consensual sexual activities. She refused both times so he stopped short of inserting his penis. If the Court believes his testimony or if his testimony raises a reasonable doubt, he is entitled to an acquittal. [ 48 ] The accused negates the actus reus of the specific sexual act alleged by the complainant which is the vaginal intercourse.

The accused submits that his testimony is logical given the flirtatious text message exchanges and that there is no reason why his testimony should be dismissed. The accused admits that there was no verbal consent given by the complainant but states that consent can be inferred from her behaviour. The accused’s unequivocal testimony at trial regarding the sexual activity [ 49 ] He gave a detailed account of how the sexual activities came about. He said that he told the complainant to get closer to him once they were done talking and that she rolled herself close to the bed and they kissed.

He described how he flipped her onto the bed and continued to kiss her. He described their mutual touching, the way that he slid off her pants, the oral sex that he gave her and that it lasted about 5 minutes. He described how he unbuckled his pants while giving her oral sex and he remembered that she sat up in a 90 degree angle in order to facilitate the removal of her shirt. [ 50 ] He described how they were torso to torso with their faces aligned and that there were no words exchanged, only moans and sounds of pleasure. Their groins touched and the accused was between her legs that were spread open.

He held his penis with one hand and put it to the lips of her vagina. As he went to slide down to penetrate her vaginally, she refused so he did not insert his penis. [ 51 ] The kissing and touching continued, he gave her oral sex again and she reacted with pleasure. He stopped the oral sex and put his back to the bed. She climbed on top of him, straddled him, rubbed her vagina against his penis and slid down to fellate him. He eventually pulled her up by her hair and the fellatio ceased.

The straddling, pumping and kissing continued, she clearly enjoyed it so he pulled her back onto the bed, put his penis at the entrance of her vagina and as he went to push it in, she said no. He did not insert his penis, stopped all activity and collected his clothes in order to leave. [ 52 ] He denies that she said she did not want to do more than kiss. He denies ever putting his hand over her mouth. He denies penetrating her vaginally.

The accused’s testimony about the text messages that he tendered into evidence [ 53 ] It is important to highlight the degree of detail given by the accused during his testimony in comparison with what he said about the text message exchanges [17] with the complainant. [ 54 ] In order to ensure a proper comprehension of these exchanges, the entire string of messages is reproduced as follows: TEXT MESSAGE EXCHANGES September 7-8, 2016 A ccused, hereafter "A" C omplainant, hereafter "C" 09-07 10:57 p C I like your face 09-07 10:57 p A Ooooo;) 09-07 11:01 p C Hahaha 09-07 11:06 p A Well you can use it as a seat anytime you want 09-07 11:06 p A What u doing tonight? 09-07 11:12 p C Nothing you?

No date No time C Omg haha No date No time Missing text message A

09-07 11:37 p C HaHa that's it 09-07 11:37 p A And I wouldn't say you didn't enjoy them;) you're into it 09-07 11:39 p C Uum maybe 09-07 11:40 p A "I want you in stockings" "ye I should get some" and you said I could touch your butt. So i think I'm right 09-07 11:46 p C Yeah most likely No date No time Missing text message A 09-07 11:52 p A Nope but I'm direct about it.

Um well telling you to put on stockings for me so I can touch your butt kinda says something about interest, no? 09-07 11:53 p C I think so 09-07 11:54 p C Interested about physical intercourse from what I understand 09-08 12:03 a C That's fine though.

I'm not judgemental of anything ☺ I don't mind No date No time Missing part of the message A Well I wouldn't say that's a bad September 11, 2016 09-11 10:44 a C You can come over if you want but yeah 09-11 10:44 a C No 09-11 10:44 a C I drank in the rvc courtyard 09-11 10:44 a A But yeah ? 09-11 10:44 a C With friends 09-11 10:44 a C But yeah maybe you don't want to see me in the poor state I'm in No date No time Missing text message A 09-11 10:50 a C What I'm asking is is that really what you planned with me 09-11 10:50 a A Oh well I wouldn't say I wouldn't want to 09-11 10:50 a A But I am gonna spend time with you 09-11 10:52 a C Okay that sounds good 09-11 10:54 a A Doesn't mean I'm not gonna try though No date No time C Oh No date No time Missing text message A 09-11 11:00 a C What are you interested in? 09-11 11:01 a A Food, training, art and jazz 09-11 11:01 a A Sports and etc… 09-11 11:01 a C No I wasn't talking about that 09-11 11:01 a C I'm takling about girls 09-11 11:02 a A You mean with you?

No date No time C Yes 09-11 11:40 A I know the feeling. What room you in? 09-11 11:42 a C Tower [...] floor number [...] 09-11 11:43 a A Is it hard to find? 09-11 11:43 a C Not really 09-11 1:23 p C When are you coming? 09-11 1:23 p C I'm gonna get some groceries do you want anything? No date No time Missing text message A TEXT MESSAGE EXCHANGES [ 55 ] The accused told the Court that he took screenshots of the messages from his cellular telephone when he heard through a friend that the complainant had filed a police report.

He chose which messages should be photographed and his objective in doing so was to capture the mood of the conversation. He also decided which messages should be cut off. His decision to preserve some messages and not others was based on relevance. He did not preserve approximately 6 text messages and he kept the ones that were flirty and jovial. [ 56 ] When he was cross-examined on the content of the text messages [18] , he was not as unequivocal in his answers as he was when describing the event in the dorm room.

« What u doing tonight? » text message of September 7, 2016 [ 57 ] For example, when the Prosecution referred him to the first page of the text messages [19] , and she asked him if his messages meant that he wanted to see the complainant on that evening, he responded that he asked her what she was doing that night and that he might have wanted to see her or he was simply asking her if she was free. He did not know the meaning of these messages with certainty. [ 58 ] When the prosecutor specifically asked him if he remembered the meaning of the message « What u doing tonight? » and if it

was possible that he wanted to see her that night, he responded that it was possible that he wanted to see her but he does not remember if that was his intention at the time. [ 59 ] After he gave his response to the prosecutor’s question, she asked the accused to confirm that he chose the text messages that would be the subject of screenshots by relevancy. He confirmed this as well as the fact that their entire conversation does not appear at pages 1 and 2 because there are some missing messages. She asked him if the missing messages could have helped him remember his intention at the time.

He responded that the missing messages would not necessarily help him remember because he did not know how anything more could have been ascertained by them. [ 60 ] The prosecutor went on to underline that there was a time gap between the last message on page 1 [20] and the first message on page 2. [21] He agreed with her that there seemed to be a message gap between 11:12 pm and 11:37 pm. He confirmed that there was probably a missing message from him at the top of page 2.

When she asked the accused if the subject matter of his missing message at the top of page 2 pertained to what she was doing that night, he responded that he told the complainant about what he was doing that night. [ 61 ] The prosecutor then asked him why he wrote « What u doing tonight? » [22] . He responded that maybe it was because he wanted to see her that night. He also said that he sometimes asks that question in order to make small talk. [ 62 ] The message « What u doing tonight? » was written by the accused at 11:06 pm on September 7.

Right before he sent her that message and in the same minute, he sent her a text message where he told her that she could use his face as a seat anytime she wanted. [ 63 ] When the accused responded to the prosecutor’s questions about the meaning of « What u doing tonight? » he was non- committal and evasive.

Here are some of the answers that he gave as possible explanations: he might have wanted to see her, he might have been asking her if she was free, it is possible that he wanted to see her but he does not remember his intention at the time, maybe he was making small talk, the missing message or messages would not necessarily help him remember, it is possible that the missing messages [23] could be about his interest in having sexual intercourse with the complainant. [ 64 ] The Court does not believe that he did not remember his true intentions at the time.

He chose to tender the text messages into evidence, and considering that he was so precise in his testimony about the sexual activity that took place with the complainant on September 11, 2016, it is unbelievable that he would not know what his intentions were on September 7 when he asked her what she was doing at 11:06 pm. Moreover, what makes it more unbelievable is that in the same minute before that, he told her that she could use his face as a seat whenever she wanted.

This is a clear allusion to sexual activity and it is obvious that he sent her that message because he wanted to see her in person. [ 65 ] If the accused preserved only the messages that he deemed to be relevant, the Court does not understand why he would not preserve a message or messages that showed his interest in having sexual relations with the complainant unless he felt that the missing messages would jeopardize his credibility.

« You can come over if you want but yeah » , text message of September 11, 2016 [ 66 ] When the prosecutor cross-examined him on the messages of September 11, 2016, the accused confirmed that the string of messages began with the complainant telling him that he could go over if he wanted. [24] The prosecutor asked him if he made an approach earlier that morning to see her and he responded that he had proposed seeing her on the earlier days but he had no recollection of making an approach on the day of the event. [ 67 ] When the prosecutor asked him if the complainant’s message: « You can come over if you want but yeah » [25] was a response to a message that he had sent her but that he did not include in his screenshots, he confirmed that this was probably the case.

He stated that he went through the messages that he thought were relevant and that some messages were jokes. The ones he photographed were the most pertinent. [ 68 ] The first conversation recorded on September 11 came from the complainant who said « You can come over if you want but yeah ».

The accused confirmed that in that message, she was probably responding to a message that he sent her. [ 69 ] The Court does not understand why his message which prompted her to invite him over would not be relevant since the purpose of the invitation, according to the accused, was to spend time together, make out and possibly to engage in sexual activity. The Court deems he manipulated the string of text messages and decided what should be disclosed and what should not be disclosed to suit his own purpose.

« Oh well I wouldn’t say I wouldn’t want to » , text message of September 11, 2016 [ 70 ] The accused was cross-examined on what he meant when he said « Oh well I wouldn’t say I wouldn’t want to » in one of his text messages to the complainant. [26] He stated that he was not entirely sure what his train of conversation was for this.

In his view, it could have meant that they were talking about a continuation of a relationship since he was going to spend time with her. [ 71 ] When the prosecution suggested that his response meant that he wanted to have sex with her in spite of the fact that she wasn’t feeling well since she was hungover, he responded that it was possible but he was not certain since there were messages missing. He said that the messages showed the mood since the two had been flirting and this was not a case where she did not want him at her place. [ 72 ] The accused’s explanation about this text message makes no sense.

It is unbelievable that he wrote the text message himself and that he was not entirely sure what his train of conversation was at the time. The hypothesis that he brought forward about them talking about a continuation of a relationship is illogical since there was no relationship to begin with. The complainant and the accused hardly knew each other and at the time of the drafting of the text messages, they had never spoken in person. « Doesn’t mean I’m not gonna try though » , text message of September 11, 2016

[ 73 ] When he was cross-examined about the meaning of this message [27] , the accused responded by saying that it could have meant that he was trying to woo her or make her laugh or try to make out with her. He stated that the message is a little bit ambiguous. He could have been alluding to making a move romantically and it was not necessarily a reference to sex. [ 74 ] The Court does not believe his version that the message was ambiguous and that he did not know what he meant to say when he sent it. The message came from him and it is a part of a string of messages that he exchanged with the complainant.

It defies logic that he would be uncertain about its meaning when he was so precise about his version of what happened in the dorm room on the same day that he sent her that message. Chemistry or no chemistry? [ 75 ] The accused stated in examination in chief that there was initial chemistry between himself and the complainant over text messaging and that he went to her dorm room because he was looking for a friendship or a relationship. [ 76 ] The Court does not believe that he wanted a friendship or a relationship.

He was looking to have sex with the complainant. [ 77 ] He sought her out on Facebook Messenger and the flirtatious sexual innuendos began during those exchanges as can be seen in the following examples that have been boldfaced: Exchanges between the accused and the complainant Via Facebook Messenger September 7, 2016 A ccused, hereafter “A” C omplainant, hereafter “C” Page 6 A limit for what? C Age for guys I talk to A that seems very exclusive C Just fucking with you A “old people are worthless to me!” C Haha My dad is 70 A are you saying youre into me?

I get that reaction a lot it’s cause my bum is nice I know C I did not say anything I agree You’re so modest I like big butta *butts Page 7 C (Idem) A ahhh hence why you like my butt I get it

C “And a round thing in your face You get sprung Wanna pull up tough Cause you notice that butt was stuffed Deep in the jeans she’s wearing I’m hooked and I can’t stop staring Oh, baby I wanna get with ya And take your picture My homeboys tried to warn me But that butt you got Sir mixalot – I like Big Butts (Lyrics) Youtube.com Hahahaha A well you can take a feel when you want C I’m good (missing text) Page 9 C An offer? Yeah Nice A Ye to compare butts C Want to come over and touch my butt? Hahaha A yes see that’s polite C You’re killing me right now A and sure I do Page 10 C Cool Soon then A soon?

Well you gotta tell me where to go to do this C Over coffee? A want me to touch your butt over coffee? Exchanges between the accused and the complainant Via Facebook Messenger

Page 11 C Yeah You can say no That’s fine A well I wanna know what happen to original offer C I guess it’s still on For like later A hmmmmmmmm I’d say ok, I can do coffee first. C Hahahaha Yayy A but if butt touches are still on I can accept, I prefer if you were in stockings during but that’s’ ok I guesssss C Why stocking? A I like em C W——s wrong with my feet Page 15 C Just say it I’m used to it What happened to him? A well if you don’t eat meat how are you gonna eat me?

Tuddum tsh C Lmaooo A oh my ex took him with her cat we couldn’T separate them they were bffs C Ohh I’m so sorry that’s terrible A sooooooo sad C Was that a while ago? I have 7 cats A ye a few years Page 19 A it’s how I go through 20 snatch misses ☹ C Your snatch was perfect A except the misses C I saw one of them I was impressed A well maybe if I’m lucky I’ll see your snatch one day :o ohhhh, double entendre!! C I don’t snatch I clean and press but I don’t snatch A you don’t get the joke C True A I wasn’t talking about the movement C I forgot to mention I’m an idiot ohh shit Page 20 C whats the second meaning?..

A hahaha pense un peu C ohhh okay I see Exchanges between the accused and the complainant Via Facebook Messenger

A lol des conneries C true true A so when you free for I? C The second most horrific sounding nickname for the human female’s genitals (after cunt). So much so that it can only be properly applied when describing genitals that are presumed of understood to be filthy of disgusting. I found this on the urban dictionary lmao Page 21 A well someone wrote that has a hatred for words C you’re pretty 16traightforward uum when are you free?

A I can’t go the long way around or else you die in the desert C Hahaha A I’m free tmrw I have to eat a lot and stretch C ohh A and I have class til 6-8 but besides that C I won’t be able to tomorrow A I will be bringing my hurting body around somewhere ahhhhhhhhhh ——do sat or Friday after training Exchanges between the accused and the complainant Via Facebook Messenger (Boldfacing by the Court) [ 78 ] At pages 19 and 20 of the exchanges, the accused tells the complainant that if he is lucky, maybe he will get to see her snatch one day.

The complainant does not understand the significance of his comment and searches the word in the urban dictionary.

She finds the definition which refers to a nickname for the female genitals and copies it onto the string of message exchanges to make it clear that she discovered its meaning. [ 79 ] Although she was not questioned by the attorneys about the exchanges with the accused regarding the word snatch, it is clear from the reading of the messages that it is a reference to the complainant’s vagina. [ 80 ] When their conversations switch from Facebook Messenger to text message on September 7, 2016, she tells him that she likes his face and he responds by telling her that she can use it as a seat anytime she wants, as shown in the following excerpt: September 7, 2016 A ccused, hereafter "A" C omplainant, hereafter "C" 09-07 10:57 p C I like your face 09-07 10:57 p A Ooooo;) 09-07 11:01 p C Hahaha 09-07 11:06 p A Well you can use it as a seat anytime you want 09-07 11:06 p A What u doing tonight? 09-07 11:12 p C Nothing you? (Boldfacing by the Court) [ 81 ] The accused said that they had chemistry when they were both naked from the waist down and he continued to kiss and caress her breasts. [ 82 ] However, he contradicted this assertion about the chemistry between them in cross-examination when he said that there was no chemistry over getting to know one another.

He also said that the complainant made a comment at the end of their time together that was a bit off putting. Therefore, no other plans were made to see each other again after what transpired in the dorm room.

[ 83 ] His assertions about the chemistry between them or the lack thereof defy logic. The accused testified that there was chemistry during the messages exchanged on September 7 and 11. He also testified that there was chemistry when they were naked and engaged in kissing and touching on September 11. When he testified about the end of the event in the dorm room on September 11, he said that there was no chemistry between them. It bears reminding that they were together for a total of one hour on that day.

It is unbelievable that the chemistry would suddenly disappear when it was present moments before when they were kissing and touching. [ 84 ] According to the accused, the comment that the complainant made at the end of their time together was off putting.

The Court fails to understand how her refusal to his invitation for coffee could be off putting since she was going out for dinner with a friend and she told him to call her tomorrow. [ 85 ] When he was cross-examined on why he would propose to go for coffee if there was no chemistry, he responded that he had a minor sexual interaction with the complainant and having coffee would have allowed them to get to know each other to see if chemistry would appear and to see if their relationship could be strengthened. [ 86 ] In the Court’s opinion, what transpired between the complainant and the accused was not a minor sexual interaction.

According to the accused, they both partook in oral sex and their genitals grinded. Qualifying the interaction as minor is an attempt to minimize what took place between two people who hardly knew each other. [ 87 ] Further to his invitation to her for coffee and despite the fact that it would have been an attempt to cause chemistry between them, the accused never called the complainant. The Court deems that he never called her again because he was never interested in pursuing a relationship with her. [ 88 ] The accused’s testimony in chief was very elaborate.

Although he was not shaken in cross-examination regarding what took place in the dorm room, his version lacked sincerity and seemed rehearsed as though he feared making a mistake. [ 89 ] It is contrary to common sense that he would recall every move he made in the dorm room but when confronted with missing parts of his text messages, he delved into possibilities and was unable to give explanations with certainty. [ 90 ] The accused’s version on the core aspects of the incident was detailed and precise.

He had control over the string of text messages and chose which ones to disclose and which ones should be set aside. He chose to set aside six of his own messages and did so as soon as he found out that the complainant had gone to the police. [ 91 ] He claimed that the messages that were not contained in the screenshots were not relevant. The Court does not believe that he set aside messages because they were not relevant.

The missing messages were wilfully held back by the accused because he was concerned that his responses could undermine his credibility. [ 92 ] Although there are no internal inconsistencies in the accused’s story regarding what transpired in the dorm room, when his version is evaluated with reference to the whole of the evidence, it is not believable and does not raise a reasonable doubt as to his guilt. Therefore, the Court rejects his testimony. The evidence of the complainant [ 93 ] The testimony of the complainant was sincere, honest and credible.

She gave her version in the most frank way possible with no attempts to exaggerate any facts. The account that she gave of what transpired with the accused was complete and straightforward and the Court has no doubts regarding her credibility or her reliability. [ 94 ] She was unshaken in cross-examination and there is nothing suspicious about any part of her story. The Court believes her version. [ 95 ] It is clear from the evidence that the complainant was interested in the accused and that she flirted with him during the Messenger and text message exchanges.

However, this has no incidence on her credibility as to what transpired in her dorm room and it does not permit the conclusion that she consented to vaginal penetration on that day. [ 96 ] The defence submitted that the complainant’s version is illogical since she brought a person into her room that she feared. [ 97 ] The Court had the opportunity to review the complainant’s evidence on this aspect of her testimony. She did not say that she feared the accused before they met and that she brought him to her room in spite of her fears.

Her testimony is that she was not afraid of him when she first met him or else she would not have wanted him in her room. She was not at ease being on the edge of the bed with him and this is the reason why she sat on the desk chair. [ 98 ] At the beginning of their conversation and while they kissed, she was not afraid of him. While they kissed and he was on top of her, she became fearful since he was a much larger man. At the time, she weighed 130 lbs and he weighed between 200 lbs and 220 lbs. This is the reason why she told him that she did not want to go further than kissing.

There is nothing illogical about this part of the complainant’s evidence. [ 99 ] She had woken up late that day and was hungover and she told the accused that she was in a less than ideal state. [28] The accused understood this because he admitted it in his testimony. They were supposed to see each other over coffee but since the complainant was feeling sick and did not want to leave her room, she invited him to her residence. [ 100 ] The Court is convinced that she did not consent to vaginal penetration.

Despite the verbalization that she did not want more than kissing, the accused had unprotected sex with her while putting his hand over her mouth so that she would not be heard by anyone. Only when she succeeded in pushing him off her did the penetration cease. [ 101 ] Moreover, she stated that she had panic attacks in the weeks following the incident as well as when she went to the gym and saw

the accused. He confirmed this in his testimony. [ 102 ] The complainant’s statement that she did not want to go further than kissing was unambiguous and she did not consent to any other type of sexual activity. When he penetrated her, she could not move, she was terrified and she said nothing until she was able to push him away after about 5 minutes.

For the purpose of the evaluation of the actus reus of the offence, the communication or externalization of consent by the complainant is not a requirement. [29] However, in the present matter, her unequivocal testimony establishes that she did not subjectively consent to the sexual activity. [ 103 ] As for the mens rea component, the notion of consent means that the complainant, through her words or actions, manifested her agreement to the sexual activity with the accused. [30] This is clearly not the case here.

CONCLUSION [ 104 ] The actus reus and the mens rea of the offence have been established beyond a reasonable doubt and the Court concludes that the accused knowingly penetrated the complainant’s vagina with his penis without her consent. [ 105 ] The presumption of innocence has been displaced and the Court finds the accused guilty of having sexually assaulted M. L. on September 11, 2016. __________________________________ FLAVIA K. LONGO, J.C.Q. Me Geneviève Rondeau-Marchand For the DPCP Me Steven Slimovitch For the accused Hearing dates: July 13 and 14, 2022