R. v. S.W., 2020 NSSC 349

SUPREME COURT OF Nova Scotia Citation: R. v. S.W. , 2020 NSSC 349 Date: 20201207 Docket: CRBW 486301 Registry: Bridgewater Between: Her Majesty the Queen v. S.W. TRIAL DECISION PUBLICATION BAN: s. 486.4 and s. 539.1 of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: November 16 and 17, 2020, in Bridgewater, Nova Scotia Counsel: Sharon Goodwin, for the Crown Alan Ferrier, Q.C., for the Defence By the Court (orally): [ 1 ] The name of the accused and the complainant have been anonymized to protect the privacy of the complainant.

She was in a relationship with the accused at the time of the incident that gave rise to the charges. [ 2 ] S.W. has been charged with sexual assault. The complainant was in a relationship with him over a period of about 2 years. She says that on September 23, 2017 he had sexual contact with her to which she had not consented. As is almost always the case when that happens, the only two people present were the accused and the complainant. She says that she did not consent. He says that she did consent. Evidence [ 3 ] The issue in this trial is whether the complainant subjectively consented to sexual intercourse.

The focus is on a few moments on the night of September 23, 2017. But context usually matters. And context, in the context of sexual assault, is a fraught issue. In this case there has been a decision about the admissibility of some evidence that relates to the prior sexual activity of the complainant. R. v. S.W. 2020 NSSC 320 . There is evidence that the complainant and the accused had been involved in a two year long intimate relationship.

That context is important, in order to make sense of the rest of the evidence, but it cannot be used to infer that the complainant was more likely to have consented to sexual intercourse on the night of September 23, 2017. [ 4 ] The couple had met in high school and their relationship developed into an intimate one. The complainant would spend nights with the accused at his parents’ home and she became quite close to his mother.

The relationship was at times troubled and the accused admitted that about a year before the incident in September 2017, he had said that if she ended the relationship, he would kill himself. Around that time, he had made statements about killing himself about several issues. There was no evidence to suggest however that the accused had intimidated or coerced the complainant into having an ongoing relationship with him.

The complainant did not suggest that she continued to see the accused because she was afraid that he would kill himself if she did not. [ 5 ] On September 23, 2017 they went into Halifax for an evening. On the way there the complainant said that she needed to be home at a certain time because she had made plans with a friend. After some bickering, they agreed to go ahead with the plans. At the end of the outing they returned to the accused’s parents’ home. The complainant could not recall whether the accused’s stepfather was present and could not recall anything about the interaction with the accused’s mother.

Both he and his mother said that the accused and the complainant sat on the couch in the living room of the home and chatted with the mother and stepfather before going into the accused’s bedroom. [ 6 ] They went into the bedroom and smoked some marijuana. That was a regular activity for them. They both became intoxicated. The complainant said that when the accused left the room she fell into a set of closet doors and knocked them over. She said that she took

a video of that to share with her friends. She said that when the accused came back, he fixed the doors. The accused said that nothing of that kind happened. There would be no reason for her to be in the area where the closet doors were kept. Those doors had come off the hinges years before and remained stored in his closet. His mother confirmed that the doors had been broken years ago and were not on hinges in September 2017. [ 7 ] The complainant and the accused both said that they were lying on the bed.

While they used different words to describe the activity, they both said that they were becoming increasingly intimate. The accused had his fingers in the complainant’s vagina. She said that she consented to that. [ 8 ] The accused said that he started to get in a position to perform oral sex on the complainant. He said that she told him that she did not want to do that because she had not had a shower that day. So, he stopped. The complainant had no recollection of that happening though allowed that it was possible that it had. [ 9 ] The complainant said that she was quite impaired and tired.

She said that she told the accused that she did not want to have sexual intercourse that evening but that he rolled her onto her stomach and proceeded to have vaginal intercourse with her. She said that he did not ejaculate inside her but did so on her buttocks. [ 10 ] The accused said that he rubbed his penis on the complainant’s vagina and had intercourse with her. He said that at no point did she say that she did not want to continue. He said that the two sometimes “talked dirty” to each other and at one point when she said she was tired, he said “shut the fuck up”. He said to her that she was “taking it”.

He said that he asked if he could ejaculate inside her and she said no. She rolled onto her front and he had intercourse with her from behind until he ejaculated on her buttocks. He said that he wanted her to roll onto her stomach so he could “finish” more quickly. [ 11 ] The accused and the complainant spent the night together and the complainant left the next morning. The accused said that they had a friendly breakfast with his mother. The complainant texted a friend, who was the friend with whom she had made plans for the night before and asked to see her urgently.

She told the friend what had happened, and the friend suggested to her that she believed that the complainant had been “raped”. The accused and the complainant continued to have contact with each other over the following months though it was not much after November 2017. [ 12 ] The complainant borrowed $900 from the accused in the fall of 2017 to deal with an emergency car repair and it was repaid on January 1, 2018. [ 13 ] The complainant went to the police in April 2018.

The accused said that was after the complainant found out that a few years before he had been experimenting with what he called “recreational drugs” and had got some of her friends in trouble as a result. An Information was sworn on May 28, 2018. The complainant went to the police in June 2018 and asked to have the charges dropped. She signed a statement before a police officer indicating that she was instructing the RCMP to terminate the sexual assault investigation of the accused and requested that they withdraw the charges that were before the court. The Information was stayed on July 11, 2018.

On October 24, 2018, the Crown provided Notice of Recommencement and the case was set down for election and plea in November 2018. Subjective Consent [ 14 ] That basic narrative, of consensual sexual activity followed by further sexual activity about which consent is disputed, naturally inclines, or even drives toward a choice. One is telling the truth and the other is not. One must be found more credible than the other, and the more credible one is telling the truth. The complainant gives their evidence first.

If it is credible on its face, it may be assumed to be the task of the accused person to show that the complainant’s apparently credible narrative was, in fact, not credible. The accused must either diminish the complainant’s version of events or create his own version that is more worthy of belief. In a sexual assault, where the issue is consent, the question is whether the complainant subjectively consented to the sexual contact. It is not about implied consent, or the accused person’s belief that silence, passivity or ambiguous conduct amounts to consent.

It is about whether the complainant, at that time, consented to the sexual contact. It is about the state of mind of the complainant. When the complainant gives apparently reliable evidence saying that they did not consent, the accused would then be required to establish that the complainant was not telling the truth about their own state of mind at the time of the sexual contact about which there is a dispute. [ 15 ] That description of a criminal trial for sexual assault misses the most important feature of the process. That is the criminal standard of proof.

An accused person can only be found guilty if their guilt is proven beyond a reasonable doubt. An accused person is not required to prove or disprove anything. A complainant’s apparently credible evidence does not shift the burden to the accused to somehow displace or disprove it. In a sexual assault trial involving the issue of subjective consent, the accused is not required to prove that the complainant was not telling the truth about their own subjective state of mind.

The Crown is required to prove that element beyond a reasonable doubt. [ 16 ] The state of mind of the complainant at the very moment that the sexual contact took place is for the Crown to prove beyond a reasonable doubt. A person may consent up to a point, then in a moment, no longer consent. The evidence of what was taking place in that moment is critical to making the required inference about the state of mind of the complainant.

What happened before and what happened after can provide some context but can also lay the groundwork for the use of improper legal reasoning. [ 17 ] Clearly the fact that the complainant and the accused were in an intimate relationship is relevant to show how they came to be together on the evening of September 23, 2017. It cannot be used to infer that the complainant was more likely to have consented to sexual contact.

The fact that the complainant consented to certain sexual contact does not permit the inference to be made that she must have consented to the continuation of that contact or its progression to more intimate contact. The fact that the complainant remained in the home with the accused into the morning of September 24, 2017 cannot be used to infer that she consented to the kind of sexual contact that took place. The fact that the accused and the complainant continued to have some level of contact after that date does not permit the inference that she was more likely to have consented to the sexual contact.

The fact that the complainant did not report the matter to the police until some months had passed does not support the inference that she was more likely to have consented. The fact that the complainant seems to have changed her mind about proceeding and asked to have the charges stayed is not evidence that would logically support the inference that she was more likely to have consented to sexual contact on the evening of September 23, 2017.

[ 18 ] The fact that the complainant spoke to her friend the next day about the incident does not admit the inference that sexual contact was without her consent. [ 19 ] What matters is whether the Crown has proven beyond a reasonable doubt that the complainant subjectively, at the moment of sexual contact, did not consent to that contact. In this case, she gave direct evidence about that. [ 20 ] The defence of honest but mistaken belief in communicated consent does not apply in this situation. The accused and the complainant were involved in consensual intimate sexual contact.

The complainant said that she withdrew her consent. The accused did not say that the complainant communicated her consent specifically with respect to sexual intercourse. The issue, again, is whether the complainant subjectively consented to that form of sexual contact. Reasonable Doubt [ 21 ] The evidence of the accused is not assessed on its own, in a silo. It must be considered having regard to all the other evidence, including that of the complainant.

An accused person is not acquitted simply because he is able to provide a narrative that on its own, and without consideration of the other evidence, raises a reasonable doubt. The evidence of the accused must be considered having regard to and in contrast with the other evidence. It need not be more credible or reliable than the other evidence. [ 22 ] The accused’s evidence is relevant insofar as it addresses the complainant’s state of mind.

What the complainant said or did matters only if it provides evidence from which the complainant’s state of mind may be determined. [ 23 ] While the nature of sexual assault cases creates the potential for a “contest of credibility”, which must be avoided, the importance of reasonable doubt can lead to applying different levels of scrutiny to the evidence of the complainant and the evidence of the accused.

In a sexual assault, where so much of what was formerly considered “context” is now inadmissible there may be a tendency to apply a higher level of scrutiny to the evidence of the complainant in an effort to comply with the exacting standard of proof beyond a reasonable doubt. But judges are required to assess all evidence in the same way and according to the same level of scrutiny.

It is only after that has been done that the determination is made of whether proof beyond a reasonable doubt has been made out. [ 24 ] The Crown does not have to prove that the complainant uttered the word “no”, or words to that effect. The Crown must establish the state of mind of the complainant in the moment. The issue is not what the accused thought but what the complainant thought. Consent cannot be implied. It must be actual. But the Crown must prove the absence of that consent. That is certainly not to say that consent is in some way presumed.

The Crown however must establish that the complainant did not consent. [ 25 ] The accused and the complainant provided versions of events that took place that evening that are, for the most part, the same. The were both impaired by marijuana. There is no dispute about the consensual nature of intimate sexual contact that took place before sexual intercourse. The complainant said that she did not consent to intercourse and expressed that in words. The accused says that the complainant continued to consent.

He says that at no point did she say that her consent was withdrawn. [ 26 ] The question is whether there is a reasonable doubt as to the complainant’s state of mind when sexual intercourse took place. The evidence of her state of mind is her testimony at trial, that on September 23, 2017, she did not consent. The legal issue is not whether she honestly and in good faith believed when she testified that she had not consented to sexual intercourse. It is not whether it is most likely that she did not consent. It is not whether in the time after the sexual contact she determined that she must not have consented.

It is whether there is a reasonable doubt, from evidence or the absence of evidence, as to the complainant’s state of mind at the time the sexual contact took place. [ 27 ] The Crown has argued that the words spoken by the accused, including “shut the fuck up” and referring to the complainant as “taking it” suggest that something was likely said by the complainant to indicate that she wanted to stop. That supports the complainant’s version of events, that she said that she did not want to have intercourse.

Why, otherwise, would he have said those things? [ 28 ] The accused testified that the complainant did not say that he should stop. She said that she was tired. He provided an explanation by saying that he was engaging in “dirty talk”. [ 29 ] The complainant and the accused were both high. The complainant said that she was quite high or very high. Her memory and her perception were to some extent impaired by the drug. There was no suggestion by the Crown that there was any evidence to support the contention that she was not capable of consenting to sexual activity.

While her memory of surrounding events was clouded by her condition, she says that her memory of the moment at which she said she did not consent was very clear. [ 30 ] When the complainant and the accused arrived at the accused’s parents’ home, the complainant said that she could not remember whether the accused’s stepfather was even in the house. She said that she did not believe that he was home that night. The accused and his mother both said that the stepfather was present and that they had a conversation before the accused and the complainant went into the accused’s bedroom.

That detail does not relate directly to the moment at which consent was withdrawn and was clearly not as significant to the complainant as the issue of her consent to sexual activity. [ 31 ] The complainant gave evidence about knocking over some closet doors. She was specific in saying that she had broken them, and that the accused came into the bedroom and fixed them. That is not consistent with the other evidence. The accused’s mother said that the doors had been broken for years.

The accused said that he had not come in to fix the doors because they were off the hinges and there were no hinges there with which to fix them. The Crown argued that this too was a collateral issue. [ 32 ] The accused said that the complainant specifically told him that she did not want to have oral sex and he accepted that. The complainant could not remember that but supposed that it was possible that it had been said.

The accused said that he accepted her refusal of the oral sex and that would support his evidence that if the complainant had told him that she did not want to have sexual intercourse he would have stopped. But the issue is not about the absence of spoken words, but of subjective consent. [ 33 ] The complainant said that she could not remember telling the accused not to “come inside” her. He specifically remembered her saying that. Both gave evidence that he ejaculated on her buttocks.

[ 34 ] It is rare that a perfect recollection of events that took place years before is possible and even rarer when it is offered, that it is a sign of reliability on the part of the person purporting to have perfect recall. People may recall some details and forget others while still having a firm and accurate recollection of the important features of what happened. That is particularly so for something that is highly significant and known to be significant at the time.

It is also true though that intoxicants of various kinds affect both judgement and perception. [ 35 ] Sexual assault cases are often about a person’s state of mind in a precise and intensely private moment. The focus is on that moment. The clarity of evidence about that moment is critical. [ 36 ] The complainant’s recollection of events was not merely imperfect, as would be expected. People forget the details.

What is of more concern is the evidence that the complainant seems to have unintentionally constructed in her mind an incident, close in time to the sexual contact that forms the subject matter of the charge, that is not consistent with the other evidence. She gave some detail about falling into doors and said that she had recorded the incident because she thought it was funny. She gave evidence about how the accused came into the room and fixed the closet door. The door had already been broken and appears to have remained broken for years before and after 2017.

It offers some evidence that can be used to infer the extent of her impairment. The complainant’s evidence confirms that she was impaired to a significant degree and that her recollection of the time surrounding the sexual contact was not reliable. [ 37 ] The Crown must be able to prove beyond a reasonable doubt that the complainant did not subjectively consent at the time of the sexual contact. That relies on the ability of the complainant to reliably relate her own state of mind at exactly that time. There is often not much that the accused can say about the state of mind of another person.

The complainant’s evidence is vitally important. When she says that she did not consent at the time, that evidence must be sufficiently reliable to form the foundation for the conviction on a criminal offence.

It must be clear that the state of mind being reported was the state of mind of the complainant at the time and not a later conclusion reached by the complainant of what she believes must have been, should have been, or most likely was her state of mind at the time. [ 38 ] In this case the complainant’s recollection of events was not sufficiently reliable to meet the level of establishing guilt beyond a reasonable doubt. I find the accused not guilty. Campbell, J.