R. v. N.G.D., 2020 MBPC 17

CITATION: R. v. N.G.D., 2020 MBPC 17 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. St. Croix for the Crown ) - and – ) ) N. G. D. ) C. Sutherland for the Accused ) ) Judgment delivered April 17, 2020 M.P. Thompson, P.J. Notice of PUBLICATION BAN The Court has granted an order of non-publication pursuant to

Section 486.4(1) of the Criminal Code , banning publication of any information that could identify the complainant. Introduction [ 1 ] The accused, N.G.D., is charged with sexual assault from an incident that took place at his residence in Winnipeg, the night of June 17 th or the early morning of June 18 th , 2019. [ 2 ] Date, time and jurisdiction are not in dispute.

The complainant knew the accused, as they had dated briefly a year or two previously, so identity is not in issue. [ 3 ] The issue at trial focussed on consent. [ 4 ] The Crown alleges the accused invited the complainant to his house and after a consensual hug and a mutual kiss; he fondled the complainant’s breasts over her protests and physically forced her to fellate him. [ 5 ] The accused confirms that he touched her breasts and fellatio occurred, but says it was entirely consensual. [ 6 ] The Crown proceeded by indictment and the accused elected for trial in Provincial Court.

Issues [ 7 ] At the trial on February 5, 2020, the Crown’s sole witness was the complainant. [ 8 ] Once the Crown closed its case, the accused testified in his own defence. [ 9 ] Credibility as to consent is the central issue. Legal Framework [ 10 ] The Crown succinctly summarized the law on sexual assault and consent in her submissions: Sexual assault is a general intent offence. The actus reus is established by touching of a sexual nature and the absence of consent.

And for the purpose of the actus reus , the absence of consent is established by reference to the complainant's state of mind, so the question is, in her mind did she want the sexual touching to take place. The mens rea requires proof of an intention to touch and knowledge,

recklessness, or willful blindness towards a lack of consent. While the law does allow for a defence of honest but mistaken belief in communicated consent, which has now been clarified by theSupreme Court of Canada in the Barton case, again, that consent has to be actively communicated. And so the suggestion that while shemay have frozen, she may have gone silent, the Supreme Court of Canada, in Barton, is eminently clear that silence, passivity,ambiguous conduct does not amount to consent in the circumstances.

And, indeed, even if there was something in her actions that suggested she may be consenting, he cannot rely on that defence unless hehas taken all reasonable steps to ascertain her consent. [11] Because the accused testified at his trial, I am guided by Justice Cory’s decision from the Supreme Court of Canada in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.),, which identifies a three step process to ensure that the trier of factremains focused on the principal of reasonable doubt, when an accused testifies: 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, based on the evidence, which youdo accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [12] As the Manitoba Court of Appeal clarified in R v. Menow 2013 MBCA 72, the law has evolved to understand this test takesplace in the context of the entire evidence at the trial, including the allegations of Crown witnesses.

Testimony of the Complainant [13] On June 17th, the accused asked to add the complainant as a friend on Snapchat and invited her over to his place. [14] She accepted, but told him on Snapchat that she wasn’t going to do anything sexual with him and she just wanted to hang outwith him. [15] The complainant, who was turning 20-years-old that night, was a single mother of a two-year-old.

She explained that at thetime, she was still with her baby's dad but they were on and off, so she wasn't really looking to move on to anybody else. [16] The complainant had first met the accused on Facebook at age 16 and had hung out with him. She dated the accused forapproximately two weeks. That was in 2018, as she recalled. [17] She had not seen the accused in the last year, nor were they in regular contact by phone or social media. [18] Her sister drove her, first stopping at the liquor store before dropping her off.

At the liquor store, she purchased five coolers,opening one in the car. [19] N.G.D. met her at the rear door and let her into the house. He led her into a bedroom. The complainant had never been to thehouse before and was unsure if he lived there. [20] The complainant testified they both sat on a bed, which was pushed up against the wall. The accused asked for a hug so shegave him a hug. [21] He sat back on the bed and showed her short video clips on his phone.

At this point, she said the lights in the room were on. [22] He left the room briefly when his mother asked for a cigarette. [23] When the accused re-entered the room, he shut the door and turned off the light, which caused her anxiety to start to get high. She testified she felt uncomfortable, as she knew he was going to try “to make a move”. [24] After watching a couple of short video clips, he kissed her and she kissed him back, but then pushed him away.

She then sat upagain on the edge of the bed, saying nothing, while trying to calm her anxiety. [25] She testified the accused grabbed her and started feeling her breast, while pulling her on top of him. At first, he felt her breastover her clothing, and then slipped his hand underneath her bra. [26] He pulled her towards him, trying to get her to straddle him and she kept pushing him off [27] She testified what happened next: He did get me on top, but my dress didn't go up, I kept it down, and I pushed him off. And that's when I sat at the edge of the bed and myanxiety went really high. Q Okay.

At that point did you say anything to him? A I just told him to stop.

Q Okay. And how did he respond to that? A Just, like, kind of, didn't take me serious. Q How do you know he didn't take you seriously? A Because he kept pulling me towards him. Q What happened from there? A He kept feeling me up and trying to make me kiss him. And then he pulled my bra down and my dress and started sucking on my breasts, so I pushed him away again. Then I sat up again at the edge of the bed. Q Okay. And this time did you say anything? A No. My legs were just shaking, and I just told him, like, to just stop and just leave me alone. Q You told him to stop and? A Leave me alone. Q Leave you alone.

A And then my anxiety was high. Q Other than your legs shaking, do you think you were showing any outward signs of your anxiety? A I just went quiet. Q Okay. And then what happened? A He pulled me back, and that's when he asked me to give him head. Q And he asked you to give him head? A Yeah. Q What does -- A And I said -- Q Oh, sorry. Go ahead. What did you say? A I said I didn't want to give him head and that I didn't come there to do anything. Q ( The complainant ), I know this might seem like a bit of an obvious question, but I need to ask. What do you mean by the term head?

A Oral sex. (T18-T19) [ 28 ] She testified that the accused pulled out his erect penis, grabbed her hair and pushed her head down repeatedly, forcing her to

perform oral sex on him. She told him she did not want to do this, but he just pushed her head down harder. She vomited into her nose and the accused ejaculated into her mouth. [ 29 ] After going to the bathroom, she returned to text her sister for a ride home. Once she got home, she took a drink and showered, because she felt dirty. [ 30 ] After she got home, the accused messaged her “happy birthday” – she was pretty sure she responded – “Fuck you”. She deleted him as a friend on Snapchat a couple of minutes later. Within 5 minutes, he tried to add her back as a friend.

She accepted in order that she could permanently block him, which she did. [ 31 ] She testified that she was still feeling “dirty” a couple of days later, when on June 21 st , she decided to got to the hospital to be checked for sexually transmitted diseases. She remembered a group chat on social media where Chantal, her friend and his cousin, had made jokes about him having herpes; so on her way to the hospital, she went to the accused’s house. She asked his mother if he lived there and if he had any STDs.

At the Health Science’s Centre, her mouth was swabbed and then she made a police report to Detective Gill at the hospital. She then messaged Chantal from the hospital to ask her if it was true. Analysis of Complainant’s credibility [ 32 ] Defence counsel pointed out that the complainant’s testimony was shaky on certain details; a differing account on how much she had to drink that night as well as what year she dated the accused – which called into question the reliability of her evidence. [ 33 ] On the issue of drinking, the accused confirmed the complainant’s evidence that she was not drunk (T-98).

Her evidence that she bought five Smirnoff Vodka Berry coolers on the way to his house was unchallenged. (T-36) The other coolers were in a plastic bag she kept with her. (T-48) [ 34 ] On direct examination, she testified she opened one in the car and took a few sips.(T-37) That cooler was in her hand and more than half-full when she went into the house. She took a shot of that drink, the first time she sat up on the bed. (T-25) [ 35 ] She did not drink any others and she left with the same one. (T-24) [ 36 ] When she got home, she took a drink and finished it.

She started showering because she felt dirty. (T-23) [ 37 ] She was cross-examined on this issue: Q Okay. I'd suggest to you, including that one that you had open when you got there, you also drank an additional two drinks while you were there; would you agree with that? A I don't recall drinking two drinks, no. Q Is it possible that you had a couple more drinks then you remember? A I offered him a drink. Q Okay. Okay. So when you went there with five, you could have left with two drinks and had a couple while you were there; would you agree with that? A I had -- I left with, I'm pretty sure, three.

I -- I've been trying to block it out (INDISCERNIBLE) Q Okay. So from what you can remember you're pretty sure you left with three? Like, could it have been -- is it possible that it was two? A Could be, yes. (T-55) [ 38 ] And later: Q Okay. So you agreed with me earlier that it's possible that you left that place with only two drinks in your bag; do you remember that? A Yes. Q So it's possible that over the course of the time you were hanging out with ( N.G.D .) that you had up to three drinks; would you agree with that? A No. I didn't drink them by myself.

Q Okay. Who was drinking them? A I offered ( N.G.D .). Q Okay. And you stated -- you stated in your statement that he took a sip, but did he have more than that? A I'm not sure. Q Okay. So you're not sure, so that means you could have consumed all that alcohol except for one sip; is that correct? A I didn't consume all the alcohol because I wasn't even drunk. I remember everything. (T-73) [ 39 ] To summarize, her evidence that she was not drunk was unequivocal. When pushed as to how many drinks she left the house with, she agreed it was possible that it was two of the original five she brought.

She was adamant that she did not consume three drinks, that she did offer a drink to the accused but was uncertain if he took more than one sip. Her explanation, that she tried to block this event from her mind, gives us context for this discrepancy. [ 40 ] She was uncertain whether she had dated the accused in 2017 or 2018, but was clear she had not had regular contact with him in a year. [ 41 ] I find these to be peripheral matters. Her uncertainty on these details are not significant and do not affect my assessment of her credibility.

We know, from both witnesses, she was not drunk and that she dated the accused briefly for a period of weeks, one or two years previously. [ 42 ] There are several reasons why I believe the complainant. [ 43 ] I find she was candid with her evidence and did not try to hide anything from the Court. Her evidence was honest when she described that she got quiet when her anxiety was high. She conceded on difficult issues.

She admitted going to his house in the early hours of the morning with a drink in hand and fully admitted that when he first kissed her, she kissed him back. [ 44 ] Her evidence on consent was unequivocal and consistent. She did not want to do anything sexual with the accused and she made that clear to him through her words and actions. Before coming over, she messaged him that she did not want anything sexual to happen. Once he groped her, she repeatedly pushed the accused away and told him to stop.

He did not take her objections seriously and she described how he pushed past them, ignoring her protests. [ 45 ] Her story makes sense. She described this event with details and emotions consistent with someone not only telling a story, but also describing a traumatic experience. She told the Court she was anxious. It was clearly difficult for her to keep her anxiety under control as she testified. The Court had to remind her several times to breathe. During direct examination, she cried as she recounted the details of what happened to her.

She described in detail what she was thinking and feeling as she was sexually assaulted. [ 46 ] She testified that during the assault, she was thinking that she wanted to go home. She remembered what she was seeing during the assault, the curtains and the accused's silhouette in a dark room, what she was feeling after the assault and that she felt dirty. She also remembered how she was throwing up in her mouth while forced to perform fellatio, with vomit coming out of her nose. At no time did she say she vomited on the accused.

Testimony of the Accused [ 47 ] The accused took the stand and testified in his own defence. His evidence was that he messaged the complainant on Snapchat that evening. He asked if she was with her baby’s father, because that man was always trying to start problems with him. She told him no. He sent her flirting emoji’s and she sent him some back. [ 48 ] When she arrived and he took her to his bedroom, she questioned where they were going to hang out.

He explained it was late and because he did not want to wake up his family, they would stay in his room. [ 49 ] He testified she did seem a little bit intoxicated, but clarified on cross-examination: She didn't seem drunk when I was talking with her. She didn't -- she didn't appear drunk when she showed up at my back door. She didn't sound -- like, when I was talking with her in person she did not sound drunk. She was not coming off as drunk. She admitted herself she wasn't drunk. Q Okay. A So – Q So you had no reason to think that she was drunk that night? A No. (T-98)

[ 50 ] He testified they talked and she pretty much hinted that her baby’s father was abusing her. Previously she had messaged him that he was abusing her. [ 51 ] He described what happened sexually: I kissed her, and then she kissed me back. We kissed for a little bit, and then I did touch her chest. And then at that point she wanted to show me that she had just gotten piercings on her chest, so she took out her breasts. And then I -- I just -- I touched them a bit. And from there, I tried -- we -- we, kind of, laid down on the bed, and her breasts were still out.

And then I -- I tried to touch down in her vaginal area. She said I can't, so I said okay. And then I just thought, okay, she didn't say she didn't want to, she said I can't, so I thought maybe she's on her period. And then that's when I asked her if she would be willing to give me head, and she didn't say no, she did say yeah. (T- 89) [ 52 ] Two significant issues arise from this testimony: firstly, this is a Browne v. Dunn problem. The assertion that the complainant took out her breasts to show her new piercings to the accused, was never put to the complainant during cross-examination.

Defence counsel conceded as much during argument when questioned by the Court: THE COURT: One issue I wanted to ask you about, there's a Browne v. Dunn issue. The accused did not put to the complainant through cross-examination that she willingly exposed her breasts to him or that he was shown them because she had new piercings on her breasts. MR. SUTHERLAND: Yes. And I -- I -- THE COURT: Typically, what happens is the judge can draw an adverse inference when something's not put to the complainant. Any comment? MR.

SUTHERLAND: I didn't anticipate that part of the -- that coming out in the testimony, Your Honour, so I didn't put it to her. THE COURT: Which is typically why judges look to draw adverse inferences because usually it's evidence that's taken by surprise. MR. SUTHERLAND: Yes. (T-131) [ 53 ] The second issue raised in the accused’s testimony is his evidence as to consent. [ 54 ] When he attempted to touch her in the vaginal area, she told him “I can’t”.

He interpreted that not as a rejection, but assumed she must be on her period, even though he acknowledged she did not verbalize that to him. [ 55 ] I note the accused gave contradictory testimony on this point, later saying that she told him she had a pad on. (T-108) [ 56 ] He followed that up by testifying “And then that's when I asked her if she would be willing to give me head, and she didn't say no, she did say yeah.” [ 57 ] This is an odd way to describe how she consented to fellatio. [ 58 ] On cross-examination, he agreed that it was his understanding that she was coming over because the two of them were going to engage in some kind of sexual relations. (T-94) [ 59 ] When pressed on exactly how that was communicated, he testified as follows: Q Okay.

You told me earlier that when she agreed to come over at 1:00 in the morning you expected that the reason she was coming over was because the two of you were going to engage in sexual relations? A No, we talked about it before she showed it. Q You talked about it before she showed up? A Yes.

Q Okay. And what did she tell you? A She said she was open to it. She didn't say anything about being on her period before she came over, she didn't say anything like that. Only when we started engaging more and she said she couldn't, then that's when I put it together and, yeah, she said -- Q Okay. So when you're -- A -- she had a pad on. Q -- when you're having this conversation beforehand she says she's open to it? A Yes. Q Okay. And -- and what exactly -- how -- what was that exact exchange? What did you say to her? What did she say to you? A Well, I had just been released from the remand that day.

I was talking to her and, pretty much, I was, like, you know, I'm, kind of, looking just to hang out and have a good time, I'm not trying to do anything, like, stupid. Like, because usually I'm involved with the wrong crowds and whatnot. And she said she was okay with that, she would come over. So she came over. Q Okay. But at what point is she telling you that she's open to the idea of having sex? A She didn't say I'm open to the idea of having sex, like, straight out. She didn't say it just like that. We just -- we, kind of, talked about it.

If we hadn't talked about it, I wouldn't have thought it, I wouldn't have -- none of that -- you know, nothing would have happened. (T- 102) [ 60 ] When pressed on the exact words she used to communicate her openness to sexual activities, he was unable to articulate them: Q Okay. And those weren't her exact words though? A Not sex. She -- she was open to the idea of sexual activities going on. Q Okay. So she says -- she sends you a Snapchat that says I'm open to the idea of sexual activities? A No. I don't remember the exact -- what was exactly said, but I remember it was to do with that. Q Okay.

You don't actually remember though what was exactly said? A Not exactly. Q Okay. And if I suggested to you that, in fact, what she said was that she didn't want anything to happen, is that a possibility? A No. (T-104) [ 61 ] The accused testified during cross-examination that he would never violate a woman’s sexual integrity. However, when confronted with his criminal conviction for distributing intimate images without consent, he was forced to admit that was not true. He tried to defend this contradiction by saying he had matured and that he was now a man.

However, he admitted he was 15-years-old when first convicted and was 18-years-old when charged with this offence, just three years later. Analysis of the Accused’s credibility [ 62 ] The accused’s testimony as to how she expressed her consent is contradictory and unclear. [ 63 ] He was unable to articulate the words she used to express her openness to sexual relations. [ 64 ] He testified the first time she told him she could not have sex with him, was when he tried to reach down and touch her vagina. Yet, at the same time, he testified she had messaged him she was open to having sex.

As we know, she was on her period. These contradictory messages make no sense. [ 65 ] On the other hand, her testimony, that she told him from the start nothing sexual was going to happen, is consistent with the evidence that she was on her period.

[ 66 ] The accused surprised his own lawyer with his testimony that the complainant exposed her breasts to the accused to display her new piercings. Because that assertion was not put to the complainant in cross-examination in accordance with Browne v. Dunn (1893) 1893 CanLII 65 (FOREP) , 6 R. 67, H.L., I put no weight on it. [ 67 ] The accused’s evidence that she messaged him, “At least you got what you wanted”, makes no sense. I am satisfied she did not send that message. Permanently blocking him on Snapchat was an extreme reaction.

It was consistent with her description of a traumatic sexual assault, more so than his description of a disagreement. [ 68 ] I noted internal inconsistencies in the accused’s evidence: he assumed she was menstruating versus she actually told him she was wearing a pad. [ 69 ] He was not candid with the Court when he suggested he would never violate a woman’s sexual integrity. We know he was convicted of doing that, just three years prior to this allegation. Conclusion and Verdict [ 70 ] During cross-examination, the complainant was not shaken on any material points.

Defence counsel conceded in his argument she was credible, but argued she had consented up to a certain point and if not consenting afterwards did not verbalize that to the accused. However, that argument is not a defence in law, nor is it based on the evidence in this case. The accused testified that he asked her to give him head and she said yeah. (T-89). His evidence is that she verbally provided explicit consent. [ 71 ] During closing submissions, defence argued a theory that the complainant only became upset with the accused afterwards and then alleged what occurred was non-consensual.

Defence postulated this might have been because they had a falling out after the accused saw she was messaging the father of her baby, she may have been upset that she did not get sexual gratification and/or once she heard the rumour he had herpes, she went to police. [ 72 ] The law is clear; the defence is under no obligation to suggest a motive for making an untruthful complaint. Here the defence has suggested a theory: that after a consensual act of oral sex, the complainant got angry at the accused and made a false report.

As such, the Court must acknowledge and respond to that position. [ 73 ] The Crown expanded on this in submissions: As my friend pointed out, because ( N.G.D .) (the accused) testified in this matter, the Court is required to consider his evidence and the Crown's evidence using the W.(D.) framework. The purpose of the W.(D.) framework is to ensure that the Court remains focused on the concept of reasonable doubt, but that evidence is not to be viewed in isolation. It has to be viewed in the context of the entire case.

That includes the evidence of the complainant. [ 74 ] And later: And it's our position that her evidence -- and, quite frankly, I think counsel admitted this during the course of his closing submissions, her evidence was very credible. (T-125) [ 75 ] When I review the evidence of the complainant, I find it to be consistent, logical and compelling.

I accept her testimony that the accused touched her in a sexual manner and forced her to touch him in a sexual manner, despite the fact she clearly and repeatedly, through her words and actions, expressed her lack of consent. [ 76 ] I find her evidence was credible. [ 77 ] I do not find the testimony of the accused credible and I reject his evidence. [ 78 ] When applying the W.D. test, firstly for the reasons I have stated above, I do not accept the evidence of the accused. Secondly, the accused’s testimony does not leave me with reasonable doubt.

Thirdly, although the accused’s evidence does not leave me in reasonable doubt, I must determine whether based on the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 79 ] The theory of a false complaint made in anger from a dispute after the fact does not have a basis in credible evidence before the Court. Having considered the third test of W.

D. , based on the evidence of the complainant, which I accept, I am convinced beyond a reasonable doubt of the evidence of the guilt of the accused. [ 80 ] I find the accused guilty of the charge of sexual assault. “Original signed by” M. P. Thompson, P.J.