r v. BEN MAIER, 2022 QCCQ 7295

R. c. Maier 2022 QCCQ 7295 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminel and Penal Division No: 500-01-195442-196 DATE: October 25, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. BEN MAIER Accused ______________________________________________________________________ JUDGMENT [ 1 ] Mr.

Ben Maier is charged with sexual assault causing bodily harm (section 272(1)c)(2)b)) of the Criminal Code , forcible confinement ( section 279(2) a)) of the Criminal Code and choking in order to facilitate the commission of an indictable offence (

section 246a) ) of the Criminal Code on September 15, 2019. [ 2 ] The accused admits the sexual interaction and claims that it was consensual. His version is that through her words and her conduct, the complainant communicated her consent to every aspect of the sexual relations. He denies forcibly confining her or choking her to facilitate the commission of an offence. THE EVIDENCE [ 3 ] The complainant and the accused both provided detailed accounts of how they met and of their interaction leading up to their sexual encounter.

Their versions are mainly compatible and for this reason, the Court will set out only the broad strokes of this part of the evidence. [ 4 ] The accused and the complainant met for the first time at a park a week prior to the incident. The complainant was there with some friends and the accused was selling edible cannabis products. They chatted and the complainant took the accused’s contact information. [ 5 ] Over the next few days, the accused and the complainant sent each other a number of “direct messages” on Instagram. They arranged to meet so that she could buy something from him.

Following this meeting, the complainant wrote to the accused and they ultimately agreed to meet for a drink on the night of September 14. [ 6 ] The complainant arrived at the agreed meeting place first and had a few drinks while she waited for the accused, who arrived a couple of hours later. Their interaction at this first bar was somewhat tense. After having a few drinks together, they decided to go to another bar.

The walk there was playful and the dynamic between them improved. [ 7 ] The accused and the complainant had fun at the second bar: they had some more drinks and the accused taught the complainant how to play pool. They were flirty with one another and may even have kissed [1] . [ 8 ] Eventually, they decided to go back to the accused’s apartment to smoke weed. His apartment was not far and they walked there together, still flirty and still enjoying one another’s company. [ 9 ] Once at the apartment, the accused sat down at his desk to prepare “hash dabs”. The complainant sat on the floor beside him.

They began consuming the drugs together. [ 10 ] The accused and the complainant both testified that at some point they began kissing, and that the kissing was consensual. [ 11 ] However, from that point on their versions diverge.

[ 12 ] The accused and the complainant also both recounted discussing BDSM [2] sexual practices. There is, however, disagreement as to when the discussion took place and the tenor of such discussion. The complainant [ 13 ] According to the complainant, following their arrival at the accused’s apartment, they were chatting and the conversation turned to ex-girlfriends and boyfriends. Both of them had been in relationships which had just ended. They began discussing sexual preferences and the conversation turned to BDSM.

The complainant told him that she had read a lot about it, was curious and was looking to experiment. The accused told her that he was a “dom”, which the complainant said she thought was hot, and mentioned that she thought she would be more of a “sub”. [ 14 ] The complainant told the accused that if things worked out between them, perhaps they could have a sexual relationship and that she would eventually experiment at BDSM with him. However, she made it clear that she did not want to have sex with him that night.

The complainant testified that when she said that, the accused replied “I know, I know” and that it appeared to her that he really wanted to respect that. In fact, the complainant had mentioned a number of times throughout the night, even before their arrival at the accused’s apartment that she did not want to have sex with him that night. [ 15 ] The conversation about BDSM lasted between 3 to 6 minutes. There were no details and no plan was established. There was no discussion as to what she could tolerate.

There was no mention of the fact that in BDSM there are sometimes safewords. [ 16 ] When they were chatting at the apartment, the complainant was not feeling intoxicated by alcohol as she had consumed hard alcohol much earlier in the night and only had 2 ciders, which have lower alcohol content, at the second bar. The drugs would have gone to her head but it was a familiar feeling as she smoked a lot back then. [ 17 ] At some point the accused and the complainant started kissing. They moved from the floor to the bed and continued.

This part was “fun” but it became clear to the complainant that the accused was moving at a much faster pace than she was. He was “handsy” - trying to touch her breasts and lift her shirt. She kept putting it back into place. She didn’t say “no” but thought she was making it clear that she didn’t want things to progress in that way. [ 18 ] They kept kissing and the complainant realized that she would need to tell the accused to stop. She said “I think we should have a safeword” and randomly chose “iceberg”. The accused laughed in a lighthearted way and said “okay”.

The complainant thinks that she came up with the idea of a safeword because they had just been discussing BDSM. [ 19 ] Although the kissing was consensual, the accused kept trying for more and the complainant kept putting her clothing back in place. She had this “weird feeling” and became uncomfortable. [ 20 ] The accused moved down her body as if he wanted to give her oral sex on top of her tights. She said no and kept her legs closed and told him to stop. The accused came up and slapped her with his open hand across the right side her face. It was the hardest she had ever been hit in her life.

Her neck turned from the impact and her head was thrown to the side. Her right ear began ringing and she could not hear from that ear. The accused then hit her in the same way on the left side. There was one second between the two hits. The complainant does not recall if he said anything as he hit her. She froze. [ 21 ] The accused moved down her body again. The complainant kept saying no, and she describes her body as “kind of frozen”. She said “iceberg” two or three times in a scared and desperate tone. She is not sure how loud she said it. The accused laughed and said “no, you don’t get to say iceberg now”.

At that point the complainant thought “you are going to get raped tonight” and braced herself. She said “iceberg” again. Every time she said it, he would laugh and spit at her and tell her that she didn’t get to say that word and didn’t get to go home, that it was too late. Eventually she stopped saying it. [ 22 ] The accused came back up and started to choke her with one hand. The complainant’s neck and shoulders were being pushed hard into the bed and she couldn’t breathe. She was scared to speak and in fact could not speak because of the pressure in her head, and she began crying.

She tried to claw his hand to get it off. The accused began spitting on her face while choking her. He was saying things like “you’re a stupid little slut, a stupid slut who needs to be taught a lesson” while he was choking her. [ 23 ] The complainant lost consciousness for a second and then came to. When she did, she had no idea where she was and didn’t recognize the apartment or the accused. She had no idea what was going on and could hardly speak. [ 24 ] The accused was back down at the complainant’s crotch area. He said “you’re such a little slut” and then said “what the fuck” and ripped her tights.

The complainant froze. She felt like she couldn’t move her body anymore and said “please don’t rape me”. He said “this isn’t rape, I’m not raping you”. [ 25 ] Next the accused was on the right side of her trying to force his penis into her mouth. She was on her back. She was moving her head from left to right to avoid his penis entering her mouth. His penis was right in her face and he was trying to put it in her mouth with his hand. He was saying “you stupid slut, you stupid bitch, be a good little slut, I’m going to teach you a lesson”.

She was crying and saw that her tears were going onto his hands and reflected to herself that “when tears are on somebody’s hand it means you’re being raped”. [ 26 ] The accused went to get lubricant and rubbed it all over her body. The complainant’s clothes were off at that point, although she does not recall how and when they came off. The accused tried to pin her hands over her head with one hand and kept yelling at her to press her breasts together so that he could put his penis between them. The complainant kept saying no and that she wanted to go home.

When she tried to push him away, he hit her on the face again, in the same way he had hit her earlier. [ 27 ] The accused kept getting angrier. Ultimately, the complainant did push her breasts together but she does not recall if he put his penis in between them. Then the accused was over her and penetrated her vaginally with his penis. He was naked but she does not know when he took off his clothes. At this point the complainant was frozen and completely disoriented, like she was in a dream “where your body couldn’t move and you just had no idea what was happening to you”.

[ 28 ] The complainant pleaded with the accused to let her go, and that if he did, she wouldn’t tell anyone. She said “are you really raping me right now?” In response, he laughed and spat at her and hit her. Whenever she said she wanted to go home, he would choke her and make her stop talking. The complainant stopped talking because she thought her head would pop. He was still penetrating her. [ 29 ] At some point the accused wrapped the complainant’s hair around his hand and flipped her over.

As he was sitting up against the headboard, he told her to suck his penis until it was hard and that he wanted to make her vomit. The complainant begged him not to. She moved her head from side to side and was somehow able to stand up. [ 30 ] Once she was standing, she began screaming at him not to touch her, and not to come near her. [ 31 ] The accused seemed shocked. He had a dumbfounded look on his face and looked almost kind. He said “what?

You thought that was rape?” [ 32 ] The complainant began replying and said “well…”, but in the next moment, he had her back down on the bed and penetrated her again, roughly, with his fingers and his penis. He hit her and choked her. When she yelled, he got angrier, so she tried to plead.

She said something to the effect that she still had things that she wanted to do. [ 33 ] The complainant was able to get up again when the accused had another moment of anger, after she yelled again. [ 34 ] She was standing up and backing away while he was yelling at her and telling her that she was “a stupid bitch, a fuckin’ slut”, and that she should be grateful that he brought her to his apartment. He told her to “get the fuck out of there”. [ 35 ] She just wanted to pacify him and so she said that she was sorry, that he was right and that she wouldn’t tell anyone.

He said “of course you won’t”. [ 36 ] The complainant was able to gather her belongings and the next thing she knew she was outside. She does not know what time it was but it was getting light out. Although she knows the area very well, she was disoriented. She remembers thinking that she was in Las Vegas even though she had never been there in her life. She ran down the street and sat on the stairs in front of a café. People offered her help but she either declined or didn’t reply. [ 37 ] Eventually two men insisted on helping her. They walked to a nearby restaurant so she could charge her phone.

Then she took an Uber home and went to sleep. When she woke up late in the morning, a friend came over and together they called the police. The police came over and took her to the hospital. [ 38 ] At the hospital she was placed in a neck brace and remained on a stretcher for a while. She had a number of tests, did a rape kit, and saw a social worker.

She was at the hospital all day. [ 39 ] The medical report [3] indicates that the complainant had bruising on her neck as well as a small scratch on one leg and a bruise on the other. [ 40 ] Following the incident, she had a headache that went away when she went to sleep but resumed when she was in school the following day and lasted for 2 to 3 days. [ 41 ] The ringing in her ear continued on and off until the day after the incident. [ 42 ] She had a sore throat for a day or two and trouble moving her neck for 4 to 5 days. When she turned on her phone, she saw that she had two missed calls from the accused.

The accused [ 43 ] The version of the accused is radically different from that of the complainant, both with respect to their discussions about having sex and BDSM as well as regarding the sexual interaction between them. [ 44 ] In terms of their discussions, the accused testified that earlier in the evening, before arriving at his apartment, the complainant had made comments to the effect that she was “not drunk enough to have sex with him yet”. He understood that she wanted to loosen up so they could have sex. [ 45 ] They had also discussed sex and “what they were into” while at the bars.

Rough sex and BDSM were mentioned in passing. The accused told the complainant that he was a “dom” and she said that she found that very interesting and would like to learn more about it. He suggested that they go back to his apartment and “try some stuff.” [ 46 ] Once at the apartment, they had a more specific conversation about BDSM while he was preparing the drugs. The complainant said that she wanted to try BDSM and suggested they have a safeword.

Although he had never used a safeword in the past, he agreed, and she chose “iceberg”. [ 47 ] When they began consuming the drugs, the accused breathed vapour into the complainant’s mouth, and they began kissing. They had kissed earlier in the night as well [4] . He was touching her body and her hair. After 1 to 2 minutes of kissing, the accused got down on his knees and ripped her nylons which already had a little rip.

He moved her underwear aside and performed oral sex on her. [ 48 ] According to the accused, the complainant was enjoying it, responding favourably, moaning with pleasure, moving her body, stroking his head and kissing him. When he ripped her nylons, she said “that’s really hot, I can’t believe you just did that”. [ 49 ] The oral sex lasted 20 to 30 minutes. The complainant was standing between the chair and the bed and the accused was on his knees. The accused could tell that the complainant climaxed because her body convulsed and she made deeper moaning noises.

Immediately after her orgasm, she said “nobody ever made me cum like that”. She then went to lie down on her stomach on the right

side of the bed. [ 50 ] The accused was standing 5 to 6 feet from her, drinking ginger ale. He asked the complainant, who was still lying on the bed, what she wanted to do. She replied that he had given her such a good orgasm and that “he could do whatever he wanted to her”. The accused said “really?” and the complainant said again that he could do whatever he wanted to her, and then laughed a strange laugh. The accused double checked to make sure that she was “in her right mind”. [ 51 ] The accused went to the bed and asked for a blow job, saying “get me hard and I will fuck you”.

She began performing oral sex on him but she seemed tired and unenthusiastic and after a couple of minutes said “can you just fuck me?” [ 52 ] The accused went to get some massage oil which he rubbed on the complainant’s breasts in order to arouse her by playing with her breasts and rubbing his penis between them. [ 53 ] He then moved the complainant into the missionary position and they had intercourse. He was kissing her on the mouth with his hands on her hips. Throughout, he was trying to control her body with his hands in order to put her in the position that he wanted.

He was trying to find a position that they were both comfortable in and enjoyed. [ 54 ] After a while they changed positions and eventually he was behind her in “doggy style” position. At this point, he noticed her vagina was drying up. [ 55 ] When they were in missionary position, his hand was on her neck and then on the front near her throat.

When they were in doggy style position, his hand was on the back of her neck. [ 56 ] His hand was on her neck in order to make her feel that he had power, but he was not holding her hard enough to hurt her. [ 57 ] The accused spat in the complainant’s mouth while she was giving him a blow job in order to make her mouth wetter [5] . He may have spat on his hand and put it in her vagina in order to lubricate it. The accused tried to make it pleasurable for her by using his fingers and his tongue as well as his hands to put her in a position that she would enjoy.

He may also have spat in her mouth during intercourse but he is not sure. [ 58 ] The accused never hit the complainant in the sense of punching her. He remembers at least one time when he slapped her lightly on the cheek or the face to arouse and excite her. It was not done to hurt her. This was done when she was giving him oral sex to direct her to do it properly, as part of the “dom” thing. It was meant to provide her with a pleasurable experience.

He may have lightly slapped her again during intercourse. [ 59 ] During the sexual interaction, he said things like “be a good little slut for me” and “you’re my little slut…”. [ 60 ] While they were having sex, the accused and the complainant were talking, but the accused did not understand everything she was saying. [ 61 ] She was moaning and enjoying herself but eventually her moaning didn’t necessarily sound like sounds of pleasure. At some point, the complainant said “I have things to do”. The accused found this really strange.

He realized the complainant may not be enjoying herself and said “did you forget the safeword….iceberg….iceberg?” The complainant replied “oh, iceberg” at which point the accused got off the bed and went to drink his ginger ale. [ 62 ] The complainant seemed confused and distressed. The accused wanted to calm her down and tried to explain to her that he was trying to make her happy and provide her with what she wanted.

She said “why didn’t you stop?” [ 63 ] He replied that she was supposed to say the safeword, and asked if she thought that “that was rape?” He added that “he is not a Weinstein” and that he had just done what she had asked. [ 64 ] The complainant was very angry.

He asked if she wanted to stay or if he should call a taxi, but she grabbed her belongings and left. [ 65 ] The accused called her twice 20 minutes later to make sure she was okay, but didn’t reach her, and then he went to sleep. [ 66 ] The accused testified that throughout their sexual interaction, he sought to do things that she would like and that would endear him to her. She had said earlier in the night that she wanted rough sex and then, at the apartment, she twice said that he could do whatever he wanted to her. He understood this to include slapping, spitting, holding her neck and calling her a slut.

Based on what she had told him, the accused thought that the complainant would enjoy these things. As soon as he realized that she was no longer enjoying herself, he reminded her about the safeword and stopped. THE LAW Contradictory Versions [ 67 ] Given that the accused and the complainant provide contradictory versions of the incident, the Court will be guided by the decision of the Supreme Court of Canada in W. (D .) [6] . If the Court believes the accused, it must acquit. If it does not believe the accused but his version leaves it with a reasonable doubt, it must acquit.

If the Court does not believe the accused and his version does not cause the Court to have a reasonable doubt, it must analyse whether the prosecution has proved all of the essential elements of the offences beyond a reasonable doubt. [ 68 ] The testimony must not be evaluated in a vacuum, rather, it must be assessed with a view to all of the evidence. Sexual assault

(

i) The Actus Reus [ 69 ] The actus reus of sexual assault consists in touching another person in a sexual manner without their consent [7] . [ 70 ] The absence of consent is determined subjectively, by reference to the complainant’s internal state of mind toward the touching at the time it occurred. The question to be answered for the purposes of the actus reus is therefore whether the complainant, in her mind, wanted the sexual touching to take place.

If the complainant testifies that she did not consent, and the trier of fact accepts this evidence beyond a reasonable doubt, then this element of the offense is proven [8] . [ 71 ] Whether the complainant subjectively consented in her mind at the relevant time is a question of fact. Evidence on this issue may include the complainant’s direct evidence as to her state of mind, which the Court may accept or reject, and other relevant evidence including evidence of her words and actions before and during the incident [9] . [ 72 ]

Section 273.1 of the Criminal Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question”. The Supreme Court of Canada has ruled that this encompasses the specific physical acts engaged in, the sexual nature of those acts, and the identity of the partner in those acts [10] . [ 73 ] Consent to one act does not amount to consent to another act. Consent must be given for each and every sexual act engaged in [11] . [ 74 ] Consent must also be contemporaneous with the activity in question. This is made explicit in

section 273.1 (1.1) of the Criminal Code which states that “consent must be present at the time the sexual activity in question takes place”. (ii) The Mens Rea [ 75 ] To establish the mens rea of sexual assault the prosecution must establish beyond a reasonable doubt (1) the intention to touch and (2) knowledge of or wilful blindness or recklessness as to a lack of consent on the part of the person touched [12] . [ 76 ] While knowledge is a concept that is easy to understand, the notions of recklessness and wilful blindness are not as familiar.

Wilful blindness exists when the accused’s suspicion is aroused to the point where he or she sees the need for further inquiries but deliberately chooses not to make them because he or she would rather not know [13] . Wilful blindness is the functional equivalent of knowledge.

Recklessness is a distinct concept [14] which refers to the state of mind of a person who is “aware that there is a danger that his or her conduct could bring about the result prohibited by the criminal law and nevertheless persists despite the risk” [15] . [ 77 ] In Barton , the Supreme Court of Canada reaffirmed the meaning of consent for mens rea purposes as follows: For purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent, "consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" ( Ewanchuk , at para. 49 ).

Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" ( ibid . at para. 47). [16] [ 78 ] Also in Barton , the Supreme Court seized the opportunity to elaborate upon a number of mistakes of law relating to consent. The Court underscored yet again that there is no concept of implied consent in Canadian criminal law.

Simply put, silence, passivity or ambiguous conduct does not constitute consent [17] . [ 79 ] Furthermore, the Court addressed the notion of “broad advance consent” as follows: “Broad advance consent” refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefined scope (see J.A ., at paras. 44-48 ).

As summarized in J.A ., the definition of “consent” under s. 273.1(1) “suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind” and “this Court has also interpreted this provision as requiring the complainant to consent to the activity 'at the time it occur[s]'” (para. 34, citing Ewanchuk , at para. 26 ).

Thus, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. [18] (iii) Honest but mistaken belief in communicated consent [ 80 ] Notwithstanding the fact that the accused in this matter, through his lawyer, stated that he was not raising the defence of honest but mistaken belief in communicated consent, the Court considers it appropriate to consider it. [ 81 ] The relevant question for the purpose of this defence is whether the accused honestly believed that “the complainant effectively said ‘yes’ through her words and/or actions” [19] .

According to Barton : This Court has consistently referred to the relevant defence as being premised on an “honest but mistaken belief in consent” […], and the Code itself refers to the accused's “belief in consent” (s. 273.2(b) (heading)). However, this Court's jurisprudence is clear that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct […].

As L'Heureux-Dubé J. stated in Park , “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant's actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary” (para. 44 (emphasis in original)). [20] [References omitted]

[ 82 ]

Section 273.2 of the Criminal Code sets out parameters for the availability of this defence. The relevant passages for the purposes of the case at hand are as follows: 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 (

a) the accused’s belief arose from […] (ii) the accused’s recklessness or wilful blindness, or […] (

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; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [ 83 ] Essentially, honest but mistaken belief in communicated consent is a claim that the accused committed the actus reus of the offence while “mistakenly perceiving facts that negate, or raise a reasonable doubt about, the fault element” [21] . This defence arises only once the Court is satisfied that the actus reus of the offence has been made out beyond a reasonable doubt [22] . Sexual assault causing bodily harm [ 84 ] “Bodily harm” is defined in

section 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [ 85 ] In order to sustain a conviction for sexual assault causing bodily harm, the prosecution must prove beyond a reasonable doubt all of the elements of sexual assault as well as the existence of bodily harm. Forcible confinement 279(2)(a) [ 86 ] The constituent elements of this offence are set out in the Supreme Court of Canada’s decision in R . v. Pritchard [23] .

The offence will be made out when, for any significant period of time, an individual is “coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire” [24] .

The fact that the confinement must be for a “significant” period of time is not to be interpreted as establishing any kind of minimum period [25] . [ 87 ] Furthermore, in order to sustain an independent conviction in cases where multiple charges have been laid, there must be behaviour which is sufficiently distinct from other any of the other offences which may inherently involve a restriction of liberty [26] . [ 88 ] For example, in Palmer-Coke [27] , the Ontario Court of Appeal held that the grabbing of the victim’s hair was an integral part of the continuing sexual assault and overturned a conviction of forcible confinement where the accused had already been convicted of sexual assault causing bodily harm.

Choking to facilitate the commission of a criminal offence (246(

a) Cr. C.) [ 89 ] This provision reads as follows: 246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (

a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or […] is guilty of an indictable offence and liable to imprisonment for life. [ 90 ] The actus reus of this offence occurs when an accused attempts, by any means, to choke another person. [ 91 ] The mens rea requires that this be done intentionally, with the specific intent of making the complainant incapable of resistance, thereby enabling or assisting the accused in committing an indictable offence (in this case, sexual assault) [28] .

THE LEGAL PRINCIPLES APPLIED [ 92 ] The Court does not believe the testimony of the accused, and his testimony does not raise a reasonable doubt. Here is why. [ 93 ] To begin with, the Court believes that the accused deliberately avoided providing a complete description of the events in question. For example, in chief, he didn’t mention anything about spitting on the complainant or slapping her, nor about calling her a slut, despite being asked very open questions and to relate “the chronology of events”. [ 94 ] When asked about these things in cross-examination, the accused’s testimony constantly evolved.

For example, when the prosecutor asked him if he had spit in the complainant’s mouth, he initially replied that he had done so while she was performing oral sex on him to make her mouth wetter. He added, when questioning continued, that he had spit in her mouth during intercourse after they had

kissed. He then backpedaled stating that he didn’t think he had spit in her mouth while they were having intercourse, but admitted that he wasn’t sure. To the extent that he had spit in her mouth, he wasn’t able to say if it had been more than once. He went on to say that he had probably spat on his hand in order to lubricate her vagina. [ 95 ] His testimony as to whether he had hit the complainant was equally nebulous.

When asked if he had, he initially stated that he “did not believe so, no”, but then qualified his answer by saying that he had slapped her gently, not in a hard way, but rather to excite and to arouse her, and that for him, hitting meant punching. When asked how many times he had slapped her in that way, he said that he remembered once but that it was possible it had been more than once. He had difficulty remembering when he slapped her, but thinks it was while she was giving him oral sex in order to direct her as to how to do it properly.

He admitted that he may have slapped her again when they were having intercourse. [ 96 ] In fact, on this point, once the accused acknowledged the slapping, he blatantly contradicted himself - at first stating that he did so to arouse the complainant and then saying that it was done in order to direct her to perform oral sex properly. [ 97 ] The accused’s inability to provide precise answers to questions about the spitting and the slapping stands in stark contrast to other aspects of his testimony.

For example, he volunteered that he and the complainant had kissed for just 1 to 2 minutes before he performed oral sex on her, and that he gave her oral sex for between 20 to 30 minutes. He was also quite precise in chief as to the order of the various sexual activities. [ 98 ] Similarly, the accused had a very precise memory about many other details of the night including, for example, what they had each consumed at the bars earlier in the night, which arm the complainant had pinched and the fact that she drank water and not ginger ale once they were back at his apartment.

This makes his inability to provide answers about the admittedly more sensitive parts of the encounter even more suspect. In fact, the Court concludes that the accused had a conveniently selective memory about the details of his sexual interaction with the complainant. [ 99 ] Furthermore, the testimony of the accused was to the effect that the spitting and slapping and name-calling were part of the sexual encounter and meant to enhance the sexual experience for the complainant .

The Court does not believe this, given his initial failure to mention these actions, and his difficulty testifying about them. [ 100 ] Throughout his testimony, the accused consistently tried to justify his actions and paint himself in the most favourable light. For example, as already noted, when asked if slapping the complainant had been pleasurable for him , the accused said that he “didn’t care either way” but that it was his attempt to make the experience pleasurable for her . He stated that throughout the evening, he only was trying to endear himself to her.

He also testified that he called the complainant a slut and spit on her and held her on her neck for her benefit. He did all of these things because he thought that she would enjoy them based on what she had told him. [ 101 ] While the testimony of accused on these points is not inherently implausible, in this particular case, the Court does not believe it to be true. [ 102 ] This was the first time that the accused and the complainant were spending any significant amount of time together. Their discussion about sex and BDSM earlier in the evening had been brief and unspecific.

The accused acknowledged that the complainant never said that she wanted to be subject to spitting or slapping or name-calling. All she said, according to him, was that he could do “whatever he wanted” to her. In reality, he had no idea what she might enjoy and the Court does not believe that the accused thought the complainant desired to be subject to these behaviours. [ 103 ] The Court also does not believe that the accused testified truthfully about the end of the incident.

He related that when the sexual interaction stopped (after he reminded her about the safeword), the complainant was upset because she was confused and didn’t understand what had happened. As for him, he was “distressed” that she seemed distressed, and he felt frustrated and confused. He stated that tried to calm her down and understand her perspective while explaining his. However, he denied that he was upset or angry.

And yet, the accused admitted in his statement to the police that before she left he was rude to her and called her an idiot, language which connotes anger and not mere “distress”. [ 104 ] Again, the accused was clearly wordsmithing and attempting to avoid disclosing facts that he feared would be unfavourable to him. [ 105 ] Ultimately, the version of the accused to the effect that the complainant actively communicated consent through her words, but especially through her behaviour, is not believed and does not leave a reasonable doubt in the mind of the Court. [ 106 ] As such, the Court must examine whether the evidence that it does accept proves the commission of the offences beyond a reasonable doubt.

COUNT 1 - Sexual assault causing bodily harm [ 107 ] The complainant testified that she did not consent to any of the sexual acts other than the kissing. The Court must evaluate this testimony, with a view to the totality of the evidence, in order to determine whether the actus reus of the offence has been made out. [ 108 ] The accused argues that even if the Court considers the complainant to be credible, her testimony was unreliable and cannot sustain a conviction.

He points to the fact that by his count, she replied “I don’t know” or “I don’t remember” over 130 times during her testimony, and to her inability to provide detailed responses to specific questions. [ 109 ] The Court has examined the table created by the accused in support of this position [29] and finds that what emerges is the complainant’s desire to be extremely precise, and to acknowledge her limitations in providing certain details. In fact, even in instances when the complainant said that she “didn’t know” or “didn’t remember”, she often provided quite a lot of detail.

In fact, the Court found her testimony to be detailed, structured and concrete.

[ 110 ] The complainant had some difficulty remembering the precise sequence of events during the sexual encounter. However, while she may have been somewhat unclear as to which act was performed when, she was categorical as to the types of sexual acts that took place throughout the night. [ 111 ] The accused also places a lot of emphasis on the fact that the complainant may have passed out and that she recalls coming to with “no idea what was going on”. He also points out that at the end of the incident, she was so confused that she didn’t even know that she was in Montréal and thought she was in Las Vegas.

In reviewing the totality of the complainant’s testimony, these passages do not detract from its reliability with regard to the central aspects of the incident. More specifically, they do not lead the Court to doubt the complainant’s version of what happened. [ 112 ] In reality, much of the complainant’s testimony is corroborated by that of the accused in terms of the sexual acts as well as the spitting, slapping and name-calling. The medical report also corroborates her testimony as to the rough nature of the interactions. The existence of injuries does not confirm or infirm the absence of consent.

However, it does support the reliability of the complainant’s recollections. [ 113 ] Not only was the complainant’s testimony reliable, the Court is persuaded that she was sincere. The complainant readily shared the fact that she had shown interest in the accused, and that she had indicated a desire to one day experiment at BDSM with him. She also admitted that although she doesn’t recall it, she may have told the accused that he could do “whatever he wanted to her”. She said that this was possible because of the BDSM conversation.

These and other aspects of her testimony lead the Court to conclude that she was testifying honestly and transparently. [ 114 ] In sum, the Court is convinced beyond a reasonable doubt that she did not consent to the sexual activity. [ 115 ] As for the mens rea , the Court is also convinced beyond a reasonable doubt that the accused knew, or at the very least was reckless or wilfully blind, as to the complainant’s absence of consent.

The Court is convinced beyond a reasonable doubt that when the accused began touching the complainant, she kept putting her clothes back into place, and that the accused was aware of this and chose to continue nonetheless. [ 116 ] The Court is also convinced beyond a reasonable doubt that the complainant said “no” in addition to using the safeword “iceberg” on a number of occasions and that the accused ignored her and continued to perform sexual acts. [ 117 ] In this case, the proof establishes beyond a reasonable doubt not only that the complainant did not communicate consent, but that through her behaviour and words she explicitly communicated non-consent. [ 118 ] The Court also concludes on the basis of the testimony of the complainant and the medical evidence, that in sexually assaulting the complainant the accused caused her bodily harm including bruising, scratching, a sore throat, a persistent headache, pain in her neck and ringing in her ears.

These injuries were more than merely “transient or minor in nature” [30] . Honest but mistaken belief in communicated consent [ 119 ] As already stated, the accused did not raise the defence of honest but mistaken belief in communicated consent.

Indeed, for the most part, the versions presented are diametrically opposed: the accused claiming that the complainant consented throughout and the complainant claiming that she expressed non consent. [ 120 ] That being said, the accused did insist on 2 elements of his version which overlap with the version of the complainant: First, the words of the complainant to the effect that he could do whatever he wanted to her and second, the safeword suggested by the complainant at the start of their sexual contact.

This overlap of their two versions on these points prompted the Court, despite the position of the accused, to consider the availability of the defence of honest but mistaken belief in communicated consent. However, ultimately, the Court concludes that these elements are insufficient to give the defence an air of reality. [ 121 ] To begin with, consent must be contemporaneous with the activity in question and “a belief that the complainant gave broad advance consent to sexual activity of an undefined scope” is a belief that is premised on a mistake of law and constitutes no defence.

As such, the complainant’s broad, advance announcement that the accused could do “whatever he wanted” simply cannot be the basis of a defence of honest but mistaken belief in communicated consent [31] . [ 122 ] Furthermore, it is to be recalled that in order to avail himself of the defence of honest but mistaken belief in communicated consent, the accused must take reasonable steps to ascertain the complainant was consenting.

These steps must extend to each physical act and its sexual nature. [ 123 ] In this case, like in Sansclemente [32] , “the threshold for satisfying the reasonable steps requirement was elevated” [33] . The nature of the sexual acts in this case went beyond the ordinary and the parties were not familiar with each other. In these circumstances “the risk of miscommunication, misunderstanding and mistake was palpable” [34] .As such, the mention of a safeword was wholly insufficient to give the defence of honest but mistaken belief in communicated consent an air of reality [35] .

Count 2- Forcible confinement [ 124 ] Sexual assault often involves a restriction of liberty. As such, the Court must determine whether the evidence reveals behaviour which is sufficiently distinct from the sexual assault so as to sustain an independent conviction [36] . [ 125 ] For example, in R. v . Parris , the Court asked itself whether there was “confinement not limited to what was integral to the particular act of killing” [37] .The Court addressed the same issue in McLellan [38] . [ 126 ] The reasoning of the Ontario Court of Appeal in the case of Palmer-Coke [39] is instructive.

The complainant was sexually assaulted by a stranger in her hotel room. At some point during the assault, she was able to break free. The accused pulled her back by

the hair and punched her in the face causing her to fall to the ground. A struggle ensued and the complainant was ultimately able to runout of the room into the hallway. [127] The trial judge convicted the accused of sexual assault and unlawful confinement. The Ontario Court of Appeal overturned theconviction for unlawful confinement as follows: [31] […] Here, the element of restraint that resulted from the appellant grabbing the complainant by her hair was momentary in nature. Itwas not for "any significant period of time" nor does the trial judge make any such finding.

The conviction for unlawful confinement,therefore, cannot stand. [32] I would also note that, even if one could make out, on the facts of this case, that the restraint did involve a significant period of time,a conviction for unlawful confinement was not properly entered based on the principles set out in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. On that point, the circumstances of this case appear to be indistinguishable from those in R. v. Alli, (Ont.

C.A.) where this court said: We are, however, of the opinion that any confinement of the complainant formed an integral part of the convictions for sexual assault orassault simpliciter. By virtue of the principle enunciated in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, the convictionon the charge of unlawful confinement cannot stand. (See R. v. D. (S.) (1992), (ON CA), 10 O.R. (3d) 402 (Ont.C.A.)). [33] In the same way in this case, the appellant's grabbing of the complainant's hair was clearly an integral part of the continuing sexualassault.

There would thus be a sufficient factual nexus and a sufficient legal nexus between the offences to trigger the application of theKienapple principle: R. v. Prince, (SCC), [1986] 2 S.C.R. 480. [128] Here, the DPCP points to the sequence during the sexual assault when the complainant was able to get off the bed, at which pointshe began screaming at the accused not to touch her or come near her. After a short dialogue, the accused grabbed her and pushed herback on the bed and continued sexually assaulting her.

The DPCP pleads that the act of putting the complainant on the bed and holdingher there against her will is a distinct act which can ground a separate conviction for forcible confinement. [129] The Court does not agree. Just as in the case of Palmer-Coke, the pushing of the complainant onto the bed by the accused was not“for any significant period of time” and was not a sufficiently distinct act to justify a distinct conviction for unlawful confinement[40].

Count 3 – Choking to facilitate the commission of a criminal offence [130] The Court accepts, beyond a reasonable doubt, the testimony of the complainant to the effect that during the sexual assault theaccused put pressure on her neck that restricted her ability to breathe. The actus reus of this offence, namely, choking or attemptedchoking, is made out. [131] As for the mens rea, the Court must determine whether at the time of the choking the accused:

a) intended to choke the complainant, and

b) intended the choking to make the complainant incapable of resistance, and

c) intended the condition induced by the choking to facilitate a sexual assault.[41] [132] The first point causes no difficulty as the evidence accepted by the Court is to the effect that the accused deliberately choked thecomplainant. [133] However, the Court is not convinced beyond a reasonable doubt that the pressure put on the complainant’s neck by the accusedwas specifically intended by the to make her incapable of resistance and done in order to facilitate the commission of the sexual assault. [134] The evidence accepted by the Court reveals that the choking was part of the sexual assault causing bodily harm[42].

However, itwas not a means to enable it[43]. [135] As such, a reasonable doubt exists with respect to the mens rea of this offense. CONCLUSION For all these reasons, the accused is: CONVICTED of sexual assault causing bodily harm (s. 272(1)c) (2)(b) - count 1); ACQUITTED of forcible confinement (s. 279(2)(a) -count 2); ACQUITTED of choking in order to facilitate the commission of an indictable offence (s. 246(a) - count 3). __________________________________ SUZANNE COSTOM, J.C.Q. Me Jérôme LaflammeCounsel for the DPCP

Me David LeclairAttorney for the accused Dates of hearing December 13, 2021 February 17, March 25, April 6, April 19, July 4, 2022 [13] Sansregret v. The Queen, (SCC), [1985] 1 S.C.R.570, p. 584.