IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 44 Date: June 24, 2022 Information: 991160294 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Z.J.L.B. Appearing: Ms. Maureen Longworth For the Crown Ms. Alicia Hunter For the Defence

Note: Sections 486.4 of the Criminal Code contains prohibitions against publication of a name or other information that would identify a a victim or a witness in relation to an offence alleged under

Section 271 of the Code . _____________________________________________________________________________ JUDGMENT F.M. DAUNT , J _____________________________________________________________________________ [ 1 ] Z.J.L.B. [Z.B.] is charged with two counts of sexual assault on R.C. during the summers of 2019 and 2020, as well as a common assault on her in November or December of 2020. [ 2 ] Before reviewing the evidence, I will briefly outline the current legal framework for assault and sexual assault. The testimony will then be examined in the context of that framework.

Definitions of Assault, Sexual Assault, and Consent [ 3 ] An assault is the intentional application of force without consent. [1] A sexual assault is any assault committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. [2] The offence of sexual assault is not confined to intercourse.

Any violation of sexual integrity can be a sexual assault. [ 4 ] Consent means the voluntary agreement of the complainant to engage in the sexual activity in question. [3] Consent is purely subjective to the mind of the complainant. [4] Implied consent to sexual contact does not exist in Canadian law. [5] It is not the law that unless a woman says “no” she is implicitly giving her consent to sexual activity. In other words, only “yes” means “yes.” [6] [ 5 ]

Section 273.1 of the Criminal Code limits legal consent in the context of sexual assault. Specifically, consent is not obtained where the complainant is unconscious nor where she expresses a lack of agreement to engage in the activity. [ 6 ]

Section 273.2 limits the defence of honest but mistaken belief in consent. The defence is not available if the belief arose from the accused’s intoxication, recklessness, or wilful blindness. The defence is not available if the accused did not take reasonable steps to ascertain that the complainant was consenting.

Reasonable steps do not include physically “testing the waters” by touching the complainant in a sexual way without her express consent. [7] The defence does not apply where there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [8] Burden of Proof [ 7 ] The Crown bears the burden of proving each element of the offence beyond a reasonable doubt.

The elements of the offence of assault are: 1. the accused applies any amount of force 2. intentionally 3. without consent 4. knowing or being reckless or wilfully blind that the complainant does not consent.

[8] Sexual assault contains the additional element of a violation of the sexual integrity of the complainant. [9] Where credibility is in issue, the Supreme Court of Canada in R v W.D., (SCC), [1994] 3 SCR 521 [W.D.]outlined the reasoning process. To summarize: 1. If I believe the accused – and his evidence is exculpatory – I must acquit. 2. Even if I don’t believe the accused, if his evidence leaves me with a reasonable doubt, I must acquit. 3.

Even if not left in doubt by the evidence of the accused, I must ask myself whether, on the balance of the evidence I do accept, Iam convinced beyond a reasonable doubt of the guilt of the accused. Evidence [10] The Court heard from three witnesses, the complainant, the accused, and Constable Husky. The officer’s evidence was nothelpful, and I need not refer to it again. [11] The complainant, R.C., is 21 years old and has two children with the accused, Z.B. She began a relationship with Z.B. on May4, 2019, when she was 18 and he was 20. At the time, she lived in Prince Albert, and he lived in Saskatoon.

In August of 2019, theybegan cohabiting in Prince Albert. The three incidents are alleged to have occurred in the summer of 2019, the summer of 2020, and thewinter of 2020. The charges were laid in May of 2021. Since then, the two have maintained contact, in violation of Z.B.’s conditions ofrelease. [12] No alcohol or drugs were involved in any of the incidents described. [13] Generally, I found R.C.’s evidence credible and reliable. The fact she has stayed with the father of her children (off and on),or the fact that she delayed reporting these incidents, do not undermine her credibility.

This is common in situations of domesticviolence. Defence points to the fact she threatened to report Z.B.’s violation of the no contact order, should he be acquitted of thesecharges. Given that it is factually correct that he has had contact with her, this amounts to nothing more than a threat to tell the truth tothe authorities. This also does not diminish her credibility. In some ways, she was a reluctant witness, wanting to maintain a relationshipwith the accused. I did not get the impression that she is out for revenge.

Rather, she simply wants Z.B. to see her point of view. [14] I found Z.B. generally credible as well, although I have trouble believing some of the details in his evidence. At times, he wassurprisingly honest; a large part of his testimony was inculpatory. However, on the issue of consent, the reliability of his evidence isdistorted through the lens of an outdated understanding of what “consent” means. As well, in cross-examination, he added details andtailored his evidence, apparently trying to bolster his case. [15] I shall present the evidence and decision on each count separately.

Count 1 [16] R.C. testified that, shortly after their relationship commenced, she was staying with Z.B. at his basement suite in Saskatoon forabout a week. She was already pregnant, although it is unclear from the evidence whether either of them knew this at the time. She saysshe fell asleep in bed watching TV. She woke from a deep sleep to find Z.B. on top of her; his penis was inside her vagina, and he washaving sexual intercourse with her. She could see the blue light of the TV behind him. She fell back asleep. The next morning, whenshe awoke, she rolled over in bed and shook Z.B. awake.

She asked him what happened. He told her they had sex. She started cryingand Z.B. went back to sleep. After this incident, R.C. returned to Prince Albert. [17] Z.B. says R.C. was awake. They were lying in bed watching Friends. R.C. was lying on her side facing the wall and scrollingthrough social media on her phone. He could see the blue light on her face. Z.B. started touching her waist and her breasts. Usually, ifshe did not want to have sex, she would push his hands away and say no. She did not do that, so he thought she wanted to have sex with

him. He grabbed her waist and she rolled onto her back. At this point, he did not see any light from her phone. He tried to take off her leggings and she arched her back, which helped him get them off. He grabbed her knees, but not forcefully, and she opened them. She did not say anything, but she rarely does. She did not push him off or tell him to stop. There was no conversation. She moaned when they were having intercourse. In cross-examination, he added that they kissed, not a “making out” kiss, but a “kiss peck.” He could not see if her eyes were open or closed.

The next morning, he said, “It was really good last night.” She looked confused and asked what he meant. He said, “Well, we had sex.” He does not remember her crying. [ 18 ] At some later date, the two had at least one conversation about this incident. R.C. says that although Z.B. never understood his actions were wrong, he promised never to do it again. Z.B. denies saying this, or at least, meaning it. He says R.C. was intoxicated during this conversation, and he was tired because he just got off a night shift. All he got out of the conversation was that they needed to talk about their feelings more.

He testified, “It was more to get her off my case.” In his mind, they agreed to disagree. He said, “To her, she was sleeping, but to me, she was awake.” [ 19 ] In short, R.C. says she was asleep when the sexual activity took place, and she did not consent to it. Z.B. says she was awake and participated by the “kiss-peck,” by rolling over and by arching her back. [ 20 ] On this issue, only R.C. has personal knowledge of her own state of consciousness, while Z.B. has only his opinion. I accept that R.C. was sleeping when the sexual contact began. She woke up briefly during the act itself, then fell back to sleep.

She could not and did not consent to sex. While she may have been using her phone earlier in the evening, when she rolled over, her phone was dark. Although Z.B. says she rolled herself onto her back, that movement is not inconsistent with her assertion that she was sleeping. Neither is arching her back. People move in their sleep. The fact she fell back to sleep after waking briefly during the act suggests she was in the deep phase of sleep. [ 21 ] She did not speak. Z.B. could not see whether her eyes were open or closed. She did not touch him. I do not accept that there was any kissing.

That evidence was offered only in cross-examination when the prosecutor suggested the accused did not take reasonable steps to ensure the complainant was awake and consenting. I find that R.C. could not and did not consent to the sexual activity. [ 22 ] Z.B. may rely on an honest but mistaken belief in consent, but that defence is available to him only in limited circumstances. His belief cannot result from his own wilful blindness or recklessness. He must take all reasonable steps to ensure that she is conscious and communicating her consent by words or action.

There must be evidence that R.C. expressed her agreement through words or conduct. [ 23 ] Z.B. believes consent is the absence of a “No,” either by word or action. That belief does not give him a defence to the charge. Unless he hears a “Yes” by either words or conduct, he is guilty of sexual assault. Z.B. did not take reasonable steps to ensure R.C. was consenting. He did not ask if she was awake. He did not ask if it was okay that he touched her like that. He did not ask if she consented. She did not speak or actively participate in the sexual activity.

His grounds for believing she communicated consent – that she rolled over and arched her back – are not enough in these circumstances. More inquiry was needed. [ 24 ] I find he was reckless as to whether she consented. Furthermore, he knew she was not actively participating, yet made no further inquiries to ascertain her consent. That is, he was wilfully blind to her lack of consent.

Moreover, there is no evidence that R.C.’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [ 25 ] Z.B. applied force to R.C. without her consent, thus violating her sexual integrity. The defence of honest but mistaken belief in communicated consent is not available to him in these circumstances. The Crown has proven its case. [ 26 ] I find the accused guilty on Count 1. Count 2 [ 27 ] On July 15, 2020, R.C. and Z.B. were living together in an apartment at Tamaron Square in Prince Albert. Their baby was five months old.

R.C. says she and Z.B. were lying down in their bedroom. She could not remember exactly what she was wearing, but she was clothed. Z.B. was repeatedly touching her as a prelude to sex, including putting his fingers in her vagina. She kept saying “No,”

telling him she was tired. She asked him to get their daughter and bring her to the bedroom, thinking he would stop if the baby were there. He would not listen to her. He got on top of her, put his penis in her vagina, and had sexual intercourse with her. She was not asked about whether her clothing was removed or by whom. In any event, she kept saying “No,” but he did not stop until he ejaculated inside her. She did not physically resist but felt like she was in shock and could not move. She did not relent and say, “Fine.” She did not consent to have sex with Z.B.

When he was done, she asked him to leave the bedroom, which he did. She packed up her daughter, took his vehicle, and went to her mother’s. She went back the next day but left again to stay with her sister. She decided she did not want Z.B. in her home anymore. She returned to the apartment. They argued, and he left. [ 28 ] Z.B. testified that R.C. had just had a bath, and came and lay beside him on the bed, wearing only a towel. Z.B. wanted sex, but she said, “Not tonight. I’m tired.” She asked him to fetch the baby.

Z.B. said, “Let’s have sex first.” He testified a baby in the room would not prevent sexual intercourse. Z.B. grabbed her as usual, to initiate sex. (When he uses the word “grab,” he says he does not mean he was using force, just that he was letting her know by touching her body that he wanted sex). She said, “No, I’m tired.” He said, “It’ll be fast.” She said, “No.” Z.B. understood this to mean “no” to vaginal intercourse, not “no” to the sexual touching that precedes it.

He persisted over several minutes until finally she said, “Fine.” She removed the towel and got on her hands and knees, which he took as an invitation to penetrate her from behind. She did not touch him sexually at all. He says she moaned and told him to go harder, faster. He said the sex lasted less than a minute. He did not ejaculate inside her, because they were not trying for another baby. She did not tell him to stop or try to push him off. Afterward, she told him she felt “gross” and “used” and started to claim she did not want to have sex with him.

He attributes this to the embarrassingly short duration of the sex. They argued about the incident and ended up breaking up over it for about a week. [ 29 ] Although there were some similarities in their versions, it is likely that the complainant and the accused were talking about two different incidents. [ 30 ] In any event, on his own evidence, Z.B. is guilty of sexual assault. It is not permissible to “test the waters” by touching another without her consent. Z.B. admitted to grabbing R.C.’s breasts and touching her sexually to see if she would protest.

If she did not, he took that to mean she consented to sexual intercourse. In this case, she did protest by repeatedly saying no. He says R.C. did not mean no to the sexual touching; she was saying “no” to intercourse. Again, this is his opinion. He does not know what is in her mind. There is no basis for this opinion. At no point did she say “yes” to any form of contact. She said “no” repeatedly, and he ignored her refusals. He had no reason to believe she communicated her consent to these overtures, because she said only “No.” [ 31 ] R.C. did nothing to invite his sexual advances.

I do not accept that she got on her hands and knees and said “Fine.” Even if I did, after repeatedly grabbing her in the face of her express disagreement, on his own evidence, Z.B. needed to do more to make sure she truly consented, that she voluntarily agreed, that she was not just resigning herself to the inevitable. He needed to show her he would take no for an answer. [ 32 ] In the end, however, I do not accept Z.B.’s version of events. I believe he is talking about a different incident. Nor does his evidence raise a reasonable doubt. [ 33 ] I accept R.C.’s version without question.

Z.B. repeatedly touched her sexually without her consent, and then had sexual intercourse with her without her consent. Any belief he may have held that she consented results from own wilful blindness in the face of her repeated rejections. [ 34 ] The Crown has proven beyond a reasonable doubt that Z.B. applied force to R.C. without her consent and violated her sexual integrity. [ 35 ] On Count 2, I find him guilty. Count 3 [ 36 ] In December of 2020, R.C. and Z.B. were living together in their apartment at Tamaron Square in Prince Albert. R.C. was letting Z. B. use her old cell phone.

The phone contained Z.B.’s SIM card, his information, social media, etc. The couple were breaking up. They were arguing, and Z.B. was about to leave to go to work. R.C. asked him to leave the phone behind. She says they were running towards the bathroom, and the phone got thrown on the floor and went sliding. They both went running after it. As she reached for the phone, Z.B. grabbed her arm and squeezed it so hard it left a bruise. She said it was red for hours and was stinging. Her arm hurt

for about a week. She took a picture of her injury. Z.B. logged himself out of his social media and took the SIM card from the phone. He left the phone behind and left the apartment. [ 37 ] Z.B. says they argued about the phone. It may have slid on the floor as R.C. described, but that is not when he grabbed her forearm. He blocked the door with his foot while he swapped out the SIM card into his own iPhone 6, then opened the door again. In the bathroom, the tub was full of water and R.C. tried to throw his iPhone into the bathtub. He grabbed her wrist to prevent this. [ 38 ] The relevant portion of

section 35 of the Criminal Code says: 35

(1) A person is not guilty of an offence if (

a) they . . . believe on reasonable grounds that they are in peaceable possession of property . . . ; (

b) they believe on reasonable grounds that another person . . . (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of . . . (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (

d) the act committed is reasonable in the circumstances. [ 39 ] R.C. was vague in her testimony about this event, especially about how it started. At first, she said she did not know or did not remember who threw the phone on the floor, then admitted she did it. On her own evidence, Z.B. had a right to possess the phone. She had, in effect, given it to him. She purchased the phone, and it was originally under contract in her name. When she got a new phone, she gave it to Z.B. It contained his SIM card, and his information. The phone was, essentially, in his name.

He had a right to use a reasonable amount of force to prevent her taking it from him. As well, as she had thrown it on the floor, he had reason to believe she would damage it. [ 40 ] Z.B., however, says she tried to destroy a different phone, his own iPhone 6. I find his version of events is plausible. [ 41 ] Either way, he has a

section 35 defence in that he was in possession of property (either cell phone); he believed on reasonable grounds that R.C. was about to take or to damage the property; he grabbed her to prevent her from doing that. That is the only force he applied to her during this argument. I find the act was reasonable in the circumstances. [ 42 ] Applying W.D. , Z.B.’s evidence raises a reasonable doubt in my mind as to his guilt, and on Count 3, I find him not guilty.

Summary

[ 43 ] To summarize, then, on Count 1 I find Z.B. guilty. On Count 2, I also find him guilty. On Count 3, I find him not guilty. Dated this 24th day of June 2022, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ F.M. Daunt. J