R. v. J.E., 2019 NLSC 231

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. J.E. , 2019 NLSC 231 Date : December 18, 2019 Docket : 201801G5446 Her Majesty The Queen v. J.E. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: November 4-8, 14, 19 and 27, 2019; December 18, 2019

Summary: The accused was charged with one count of assault sexual upon the complainant; two counts of uttering threats to cause death or bodily harm; and one count of uttering threats to burn real or personal property. Following a trial by judge alone, the accused was acquitted on all of the charges. Appearances:

Jude W. Hall Appearing on behalf of the Crown Robert W. Buckingham Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. J.E., 2019 NLSC 134; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC40; R. v. G. (C.D.) (1995), (NL CA), 128 Nfld. & P.E.I.R. 312, 27 W.C.B. (2d) 51 (Nfld. C.A.); Faryna v. Chorny(1951), (BC CA), [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.); R. v. W. (D.), (SCC), [1991]1 S.C.R. 742; R. v. H. (C.W.) (1991), (BC CA), 3 B.C.A.C. 205, 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S.O., 2019NLCA 42; R. v. M. (R.E.), 2008 SCC 51; R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. Ewanchuk, 1999 SCC 711;R. v. Barton, 2019 SCC 33; R. v. Goldfinch, 2019 SCC 38; R. v. Rodgerson, 2015 SCC 38. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] J.E., the accused, has been charged as set out in the Amended Indictment as follows: Count 1 THAT on or about the 22 October 2016, at or near [X] in the Province of Newfoundland and Labrador did commit a sexual assault on[A.O.][1] contrary to

Section 271 of the Criminal Code. Count 2 THAT on or about the 23 October 2016, at or near [Y] in the Province of Newfoundland and Labrador did by telephone knowingly uttera threat to [B.O.] and [A.O.] to cause death or bodily harm to [A.O.] contrary to

Section 264.1(1)(

a) of the Criminal Code. Count 3 THAT on or about the 25 October 2016, at or near [Y] in the Province of Newfoundland and Labrador did by telephone knowingly uttera threat to [B.O.] and [A.O.] to cause death or bodily harm to [A.O.] and [B.O.] contrary to

Section 264.1(1)(

a) of the Criminal Code. Count 4 THAT on or about the 25 October 2016, at or near [Y] in the Province of Newfoundland and Labrador did by telephone knowingly uttera threat to [B.O.] and [A.O.] to burn real property or personal property of [B.O.] and [A.O.] contrary to

Section 264.1(1)(

b) of theCriminal Code.

[ 2 ] The trial by judge alone took place over eight days. This is my decision on verdict. [ 3 ] The evidence discloses that Larry, the complainant’s son, and Jimmy, the accused’s son, became friends in or around June of 2016. As a result, the complainant and the accused, who had some prior knowledge of one another, began spending time together related to the children playing and attending sporting activities. [ 4 ] At some point (the evidence as to precisely when differed), the relationship between the complainant and the accused changed. Their interactions became more than just about the children.

They began spending time texting and speaking on the telephone as well as meeting privately. This was all aimed towards developing a romantic relationship which, in the opinion of the complainant at least, would culminate in the complainant leaving her husband, B.O., the accused leaving his common law partner, M.G., and the two living together. [ 5 ] Around the beginning of September of 2016, the parties’ respective partners learned of the developing relationship between the complainant and the accused and demanded that it cease.

Communications between them did stop for a short period, but by October had begun again. [ 6 ] On October 22, 2016, the accused and the complainant made a plan to get together that evening in a parking lot behind a defunct business not far from where Larry and Jimmy were attending a birthday party. The accused says the plan was to get together for a sexual encounter; the complainant says that they were to get together to discuss their relationship and nothing more. At the parking lot, sexual intercourse took place in the accused’s pickup truck. The complainant says she did not consent; the accused says she did.

This sexual encounter forms the basis for the charge of sexual assault, Count No. 1. [ 7 ] After she got home, the complainant told her husband about the sexual encounter with the accused. Late that night (in the early hours of October 23, 2016), B.O., with the complainant on the telephone, called M.G. to report what had happened between the complainant and the accused. The accused was not on the telephone. However, M.G. did speak to the accused after the complainant said that she wanted to come over to their house.

The complainant and B.O. say they heard the accused yell out something to the effect of, “If she comes over here, she will go out in an ambulance.” This forms the basis of the charge in Count No. 2. [ 8 ] Finally, on the morning of October 25, 2016, M.G. was on her way to work when she came upon the complainant and B.O. at a gas station close to the home shared by M.G. and the accused. An incident ensued involving the complainant and M.G. M.G. went home and then called B.O. Again, the complainant could overhear what M.G. was saying.

The complainant and B.O. allege that during this call the accused was again in the background and he could be heard threatening to kill the complainant, B.O. and their children, and to burn down their house. These allegations form the basis of Counts No. 3 and 4. [ 9 ] It is with this evidentiary background in mind that I will examine the charges against the accused and determine whether the Crown has proven them beyond a reasonable doubt. Before I do so, however, let me first outline some of the procedural history of this matter to place certain aspects of it in context. the

section 276 application [ 10 ] Last spring, the accused brought an application pursuant to

section 276 of the Criminal Code , R.S.C. 1985, c. C-46 , to adduce evidence of other sexual activity on the part of the complainant. Absent such an application, such evidence is inadmissible. A threshold hearing was held pursuant to

section 278.93 following which I found that certain of the evidence the accused wished to adduce was possibly capable of being entered at trial, although a full hearing on the merits would have to be held to determine whether the accused met the burden. The reasons for my decision on the threshold application can be found at R. v. J.E. , 2019 NLSC 134 . [ 11 ] I then set a date for the hearing on the merits pursuant to

section 276.94, set filing dates and ordered, pursuant to

section 278.94(3), that Crown counsel advise the complainant of the application and of her right to be represented by counsel and participate in the hearing. [ 12 ] Ultimately, however, the accused did not proceed with the

section 278.94 hearing and, as a result, he was precluded from adducing any evidence at trial that the complainant engaged in any sexual activity with the accused or with any other person other than the sexual activity that forms the subject matter of Count No. 1. [ 13 ] Nothing therefore flows from the

section 276 threshold application and, in reaching my verdict, I have not taken into account anything alleged in the materials filed on behalf of the accused in that regard. WITNESSES [ 14 ] The Crown called three witnesses; the accused called one witness and testified in his own defence. R.C.M.P. Officer [ 15 ] The first witness was the investigating police officer. He testified that he received the complaint and took statements from B.O., the complainant and the accused.

Following a voir dire , the accused’s statement was found to be voluntary and so could be used by Crown counsel in his cross-examination. [ 16 ] I will address the evidence of the other witnesses later in this decision as it relates to the essential elements of each of the offenses. Let me first, however, make some general observations regarding my assessment of the testimony of each.

B.O. [ 17 ] B.O. was not a credible witness. His testimony was inconsistent and combative. [ 18 ] I will provide some examples that illustrate B.O.’s lack of credibility. First, the evidence of the other witnesses was consistent that in late August or early September of 2016, M.G. discovered the developing relationship between the complainant and the accused. She approached B.O. about it. There was wide agreement on this – in fact, it led to a cooling-off period between the complainant and the accused that apparently lasted until October.

Nevertheless, in his testimony, B.O. insisted that he knew nothing about any such relationship until October 22, 2016, the evening of the sexual encounter that forms the basis of the sexual assault charge. This undermines his overall credibility insofar as it colours his account of what happened that evening and in the days following. I will come back to this later in these reasons. [ 19 ] Second, B.O. was confused or untruthful when he testified that he reported the alleged sexual assault to the police on October 22, 2016, the night it occurred, saying that it was “what any man would do”.

The fact is, he made the complaint on October 25, 2016. Even then, B.O. agreed on cross-examination that he went to the police primarily over an allegation of threats, not to report an alleged sexual assault. [ 20 ] Noteworthy on this point is that during his cross-examination, a matter arose that I needed to discuss with counsel. B.O. was excused from the courtroom. It was determined that the matter under discussion would take some time to resolve and so I decided to take the lunch break a little early.

When B.O. was brought back to the stand to be advised of this and to be told not to discuss his testimony with anyone over lunch, he insisted that there was something he wanted to address. He then testified that he recalled reporting the alleged sexual assault to the police the next day. I asked if he had spoken with anyone during the short break, and he replied that he had spoken to the complainant. I then asked him if he discussed his evidence with her and he said that he had not.

The circumstances lead me to find that B.O. did discuss his evidence with the complainant and that she was the source of the intended correction of his evidence. I do not find fault with the fact that his evidence was discussed with the complainant because B.O. had not been instructed on the prohibition against doing so before leaving for what was to be a short break.

However, I do find that his untruthful response to my direct inquiry affects my overall assessment of his credibility. [ 21 ] Third, B.O. denied having a criminal record despite having been found guilty of uttering threats to damage property of the complainant in the period following the incident in question. When he was confronted with this contradiction, he tried to assert that it was not her property that was involved. He had also been found guilty of assaulting the accused. Unfortunately, much unproductive time was spent on this during cross-examination.

Nevertheless, B.O. denied having a criminal record when he does have one. [ 22 ] Of course, B.O. was not a witness to the sexual activity between the complainant and the accused. As he repeatedly testified, only they know what happened that evening between them. However, his testimony forms part of the narrative leading up to and following the sexual encounter and is central to the charges of uttering threats. Given my concerns about his credibility, I have applied very little weight to his evidence.

The Complainant [ 23 ] I have some concerns about the credibility of the complainant, although they do not go as far as they do with B.O. The Crown concedes that the complainant’s credibility was impeached on cross-examination because she was less than forthright regarding the nature of her relationship with the accused. The evidence as a whole supports a finding that she and the accused developed a personal relationship shortly after they began their association because of the friendship between their respective sons.

Nevertheless, the complainant consistently denied or downplayed this, including in her statement to the police where she denied having a “relationship” or a “history” with the accused. This is one of a pattern of occasions where the complainant appeared to deliberately downplay matters that she must have felt could undermine her account of what happened between her and the accused. [ 24 ] This is of concern because it was clear that the complainant wished for the encounter on October 22 to be seen as having occurred more or less “out of the blue”, rather than as the culmination of a developing relationship.

To be clear, the fact that the complainant pursued a romantic relationship with the accused does not mean that she was more likely to consent to sexual activity on the evening in question. But being less than forthright about the true nature of her relationship with the accused undermines her overall credibility. [ 25 ] The complainant also initially denied, and then prevaricated, as to which of his parents was the custodial parent of Jimmy on the morning of October 22, 2016.

Although she denied knowing it, the evidence establishes that she would have been aware that his mother brought him to the hockey rink that morning and that he was to be with his father, the accused, that night. I find that this was more than merely a lapse in her memory. [ 26 ] The evidence established that the complainant offered to take Jimmy with Larry for the afternoon and then bring both boys to a birthday party later that evening. The complainant left that birthday party to meet with the accused, and it was at that meeting that the sexual encounter took place.

The fact that the complainant attempted to deny that she was aware that October 22, 2016 was a changeover day for parenting Jimmy could only have been to deflect from her intention to meet with the accused that evening. That is, I find that the complainant agreed to take Jimmy that day at least in part because it would permit her to have contact with the accused. [ 27 ] Each of the foregoing examples makes me concerned about the reliability of the complainant’s testimony. It is in that context, then, that I will assess her testimony as against the remainder of the evidence.

The Accused [ 28 ] The Crown identified very few inconsistencies in the accused’s testimony and between his testimony and his voluntary statement to the police.

[29] For example, Crown counsel pointed out that the accused testified that the complainant devised the plan to get together to havesex that evening.

In his statement to the police, however, he said, “I just invited her that night.” This is not a major inconsistency insofaras the evidence established that after a general plan had been made, the accused suggested the location for the get-together.Nevertheless, I do find, based upon this and other testimony of the accused, that he slanted his evidence to make it appear that thecomplainant was the primary instigator of the sexual encounter. [30] Crown counsel also pointed out that the accused denied that the complainant said she did not want to have sex, but at the sametime testified that he cannot remember what she said at the time beyond chitter chatter.

Crown counsel submitted that this is inconsistentwith the accused sliding over to her seat with his penis exposed. I do not agree. The accused’s testimony must be assessed in the contextof the evidence as a whole. In a purely consensual sexual encounter, where consent is expressed by actions, not words, what is said alongthe way may easily be forgotten. The accused was adamant, however, that the complainant did not say that she did not want to have sexand that if she had, sex would not have happened.

I do not perceive any significant inconsistency in the accused’s testimony in thisregard. [31] Finally, Crown counsel suggested that the accused was merely speculating when he testified that it was physically impossiblefor him to pick the complainant up and place her on his penis, as testified by her. I agree that lifting her up in the restricted confines ofher seat in the pickup truck would not be impossible. I also acknowledge, however, that it would not be readily accomplished and maynot be possible for some men to do, including, perhaps, the accused.

Thus, although the testimony of the accused in this regard may beslightly exaggerated, it does not undermine his overall credibility. [32] The testimony of the accused was, for the most part, consistent and clear. He was firm on cross-examination. I find thatalthough he slanted his testimony in certain respects, overall he presented as a credible witness. That is not to say that I do not haveconcerns with certain aspects of the testimony by the accused, but overall I find him a credible witness.

M.G. [33] The evidence of M.G. was given in a straightforward and convincing manner. [34] The complainant and B.O. both testified that they called M.G. to tell her about the sexual assault. M.G. was clear in herexamination-in-chief and was firm on cross-examination that no allegation of a sexual assault was made during the late-nightconversation. Additionally, her demeanor supports her position that she did not know anything about an alleged sexual assault until shemet with the police on October 27. That meeting was in relation to a charge of uttering threats being laid against her.

She broke down inCourt at that point and testified that she was upset at the fact that it was at the police station that she learned that her partner had beencharged with sexual assault. [35] As to the telephone discussion that night, M.G. testified that B.O. only said to her, “They finally done the job”. This isconsistent with B.O. having a prior concern about a burgeoning relationship between the complainant and the accused that had been thetopic earlier of conversation between him and M.G.

This gives credence to M.G.’s account and undermines the accounts by thecomplainant and B.O. [36] As mentioned, when she gave her statement to the police, M.G. was upset and focused on the revelation of the sexual assaultallegation against the accused.

I am satisfied that this accounts for any inconsistencies in her police statement, including who wasdriving the vehicle that the complainant and B.O. were in at the gas station. [37] The only other challenge to M.G.’s credibility was when it was put to her on cross-examination the different ways that shereferred to the basement of the garage at the home she shared with the accused. This was in respect of the October 25 threats. Shereferred to it as a “basement” at trial, but she had referred to it at another time as the “bottom part”.

I do not consider using differentexpressions to describe the same part of the structure to be an inconsistency and it does not help me in assessing M.G.’s credibility. [38] Furthermore, M.G. admitted to reaching into the vehicle at the gas station and grabbing the complainant. That could beconsidered an assault. Nevertheless, she freely volunteered the information. the law The Onus is on the Crown [39] The Crown must prove its case beyond a reasonable doubt and the burden never shifts to the accused. Although the standard isnot absolute certainty (R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320), proof beyond a reasonable doubt is much closer toabsolute certainty than to a balance of probabilities (R. v. Starr, 2000 SCC 40). [40] In a case such as this, therefore, one must keep in mind that the role of the Court is to access the totality of the evidence todetermine whether the Crown has proven its case – the accused is presumed innocent unless his guilt is proven beyond a reasonabledoubt.

It is not enough that I find that the accused is probably guilty – I have to be sure of his guilt before he can be convicted. [41] This case principally turns on my assessment of the credibility of the two key witnesses, the accused and the complainant, asconsidered together with the testimony of the other witnesses. In assessing whether the Crown has proven its case beyond a reasonabledoubt in circumstances such as these, I take guidance from R. v. G. (C.D.) (1995), (NL CA), 128 Nfld. & P.E.I.R.312, 27 W.C.B. (2d) 51 (Nfld.

C.A.), where Marshall J.A. reviewed the assessment of credibility by a trial judge in a sexual assault trial. In doing so, he adopted the well-known and accepted reasoning of O’Halloran J.A. of the British Columbia Court of Appeal in Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.): where the finding of guilt or

innocence turns largely on the credibility of the complainant and the accused, the trier of fact must determine whether the story of awitness is in harmony with the preponderance of probabilities that a practical and informed person would readily recognize as reasonablein that place and in those conditions. [42] Before I assess the evidence in more detail, let me first explain the implications that arise because the accused testified.

Thefollowing principles are well-established: if I believe the testimony of the accused, he must be acquitted; if I do not believe the testimonyof the accused but am still left with a reasonable doubt by it, he must be acquitted; if I am not left with a reasonable doubt by thetestimony of the accused, then I must decide whether the evidence that I do accept proves beyond a reasonable doubt that the accused isguilty of the offences (R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742). If I do not know who to believe, then I must acquit (R.v.

H. (C.W.) (1991), (BC CA), 3 B.C.A.C. 205, 68 C.C.C. (3d) 146 (B.C.C.A.). [43] The Court of Appeal, in R. v. S.O., 2019 NLCA 42, at paragraph 17, again endorsed the approach to assessing credibility inFaryna. In S.O. the court went on at paragraph 18 to quote the comments of McLachlin C.J. in R. v. M. (R.E.), 2008 SCC 51, respectingreasons for credibility findings.

At paragraph 50 of M. (R.E.), the Chief Justice said, "In a case that turns on credibility … the trial judgemust direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as awhole, raises a reasonable doubt as to his guilt.” [44] In determining what to believe (and consequently, what to disbelieve), I may accept all, some, or none of a witness’s testimony;furthermore, I may accord different weight to different parts of the evidence that I have accepted. [45] Let me go on, then, to assess each of the charges against the accused.

Analysis on Count No. 1 [46] Crown counsel reminded me that there are common myths and stereotypes that have been, and sometimes continue to be,applied to women who are victims of sexual assault. These are as set out in the dissent by L'Heureux-Dubé J. in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, at paragraphs 147-151: 147 … 1. Struggle and Force: Woman As Defender of Her Honour. There is a myth that a woman cannot be raped against her will, that if she really wants to prevent a rape she can. … 149 … 2. Knowing the Defendant: The Rapist As a Stranger.

There is a myth that rapists are strangers who leap out of bushes to attack their victims. ... [T]he view that interaction betweenfriends or between relatives does not result in rape is prevalent. 150 … 3. Sexual Reputation: The Madonna-Whore Complex. ... [W]omen ... are categorized into one-dimensional types. They are maternal or they are sexy. They are good or they are bad.They are madonnas or they are whores. 151 … 4. General Character: Anything Not 100 Percent Proper and Respectable.

... Being on welfare or drinking or drug use could be used to discredit anyone, but where women are involved, these issues are used to imply that the woman consented to sex with the defendant or that she contracted to have sex for money. 5. Emotionality of Females. Females are assumed to be ‘more emotional’ than males. The expectation is that if a woman is raped, she will get hysterical during the event and she will be visibly upset afterward. If she is able to ‘retain her cool,’ then people assume that ‘nothing happened.’ 6. Reporting Rape. Two conflicting expectations exist concerning the reporting of rape.

One is that if a woman is raped she will be too upset and ashamed to report it, and hence most of the time this crime goes unreported. The other is that if a woman is raped, she will be so upset that she will report it. Both expectations exist simultaneously. 7. Woman as Fickle and Full of Spite. Another stereotype is that the feminine character is especially filled with malice. Woman is seen as fickle and as seeking revenge on past lovers. 8. The Female Under Surveillance: Is the Victim Trying to Escape Punishment? ...

It is assumed that the female’s sexual behaviour, depending on her age, is under the surveillance of her parents or her husband, and also more generally of the community. Thus, the defence argues, if a woman says she was raped, it must be because she consented to sex that she was not supposed to have. She got caught, and now she wants to get back in the good graces of whomever’s surveillance she is under. 9. Disputing That Sex Occurred. That females fantasize rape is another common stereotype. Females are assumed to make up stories that sex occurred when in fact nothing happened. ...

Similarly, women are thought to fabricate the sexual activity not as part of a fantasy life, but out of spite. 10. Stereotype of the Rapist. One stereotype of the rapist is that of a stranger who leaps out of the bushes to attack his victim and later abruptly leaves her. ... [S]tereotypes of the rapist can be used to blame the victim. She tells what he did. And because it often does not match what jurors think rapists do, his behaviour is held against her. [ 47 ] Several of these myths and stereotypes may come into play in this case and so I must guard against them.

I will decide whether the Crown has proven the charges against the accused solely on the evidence adduced at trial without any preconceived notions as to how people may or should behave. [ 48 ] As set out in the majority decision in R. v. Ewanchuk , 1999 SCC 711, a conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements: that the accused committed the actus reus and that he had the necessary mens rea . [ 49 ] The actus reus of sexual assault is established by the proof of three elements: (

i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. The first two of these elements are objective and are admitted in this case.

[ 50 ] The absence of consent, however, is purely subjective and is determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. Although the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If, however, I believe the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. [ 51 ] The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless or wilfully blind to, a lack of consent on the part of the complainant. An accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent.

In this case, the accused has not raised the defence of mistaken belief and so I will not consider it further. [ 52 ] A more recent discussion of the concept of consent in a sexual assault case can be found in R. v.

Barton , 2019 SCC 33 , where Moldaver J. said for the majority at paragraph 88: 88 ”Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. 6 It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” ( A. (J.) , at para. 31), and it must be freely given (see Ewanchuk , at para. 36).

This consent must exist at the time the sexual activity in question occurs ( A. (J.) , at para. 34, citing Ewanchuk , at para. 26), and it can be revoked at any time (see Code , s. 273.1(2)(e); A. (J.) , at paras. 40 and 43). Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” ( R. v. Hutchinson , 2014 SCC 19 , [2014] 1 S.C.R. 346 (S.C.C.), at paras. 55 and 57 (emphasis deleted)). [ 53 ] As stated by the majority of the Supreme Court of Canada at paragraphs 73 and 74 in R. v.

Goldfinch , 2019 SCC 38 : 73 Evidence of sexual relationships must be handled with care in sexual assault trials. 74 Where a trial judge is concerned that the jury may improperly speculate about past sexual activity, it may be helpful to give an instruction specifying that the jury will not hear any evidence about whether the relationship included a sexual aspect. The instruction should explain that the details of previous sexual interactions are simply not relevant to the determination of whether the complainant consented to the act in question.

No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past.

Giving such an instruction would both reinforce the principles which guide a proper analysis of consent and mitigate the risk that jurors will rely on their own conceptions of what sexual activity is “typical” in a given relationship. [ 54 ] Although no evidence was admissible at the trial of other sexual activity of the complainant, either with the accused or anyone else, there was evidence of the personal relationship that developed between them over that summer and fall. This evidence was required to provide context to the relationships among the complainant, her husband, the accused and M.G.

As the trier of fact, however, I must remain careful not to speculate or make any impermissible inferences as to the effect of the relationship between the parties on the issue of consent on the evening in question. [ 55 ] The issue I must resolve on this count is whether the Crown has proven that the accused sexually assaulted the complainant. Even if she agreed to meet him that evening, she was free to decline sexual activity.

And, even if she agreed to engage in sexual activity at the outset, she was free to decline consent to further sexual activity, even part way through the encounter. [ 56 ] As stated above, the evidence established that the complainant and the accused began their association in June of 2016 because their respective sons played together, including being involved in organized sports. At some point, the relationship between the complainant and the accused became personal. The complainant would have me believe that this did not happen until the end of August after she received a diagnosis of skin cancer.

Her testimony was inconsistent on this point because she also testified that she confided in the accused about her medical condition in late July. She also agreed at one point with counsel for the accused that the relationship developed quickly. That latter concession is more consistent with the testimony of the accused.

It is more likely that the complainant shared personal medical information with a person with whom she had already developed a relationship beyond one associated with their children. [ 57 ] The personal nature of the relationship grew to the point where on the Labour Day weekend, while the accused was in Nova Scotia on his way back to Newfoundland, the two shared a two or three hour communication. I find that M.G., with whom the accused had been cohabitating since earlier that year, found out about the call and confronted the complainant.

The complainant promised to call off her relationship with the accused if M.G. promised not to tell B.O. [ 58 ] Despite her agreement with M.G. not to do so, the complainant continued with her relationship with the accused. This became known to M.G. when she discovered that the accused was using his business phone to communicate with the complainant. This time, M.G. went straight to B.O. and told him what was going on.

After being confronted with this disclosure, the complainant and the accused ceased communicating for a short period. [ 59 ] Although I have found the testimony of B.O. to be largely unreliable, I do find that he had suspicions about what was going on between the complainant and the accused. To this end, I find that he warned her about the accused, who was known to him to be a womanizer.

Furthermore, as indicated above, I reject his testimony that he was not aware of any personal relationship between the accused and his wife until after the alleged sexual assault. [ 60 ] I find that after a brief hiatus, the accused and the complainant renewed communications in furtherance of their relationship. The relationship had progressed to the point where they discussed leaving their respective partners so that the two of them could be together.

[ 61 ] I find that on October 22, the two young boys had a hockey session at a local rink. K.T., Jimmy’s mother, brought him to the rink. I find that the complainant knew that K.T. was the custodial parent that morning and Jimmy was to be with the accused that night following an exchange that was to happen later in the day. The complainant offered to take Jimmy for the day as the two boys were invited to a birthday party later that evening. This would present an opportunity for her and the accused to get together.

I find that the complainant and the accused planned this earlier in the day. [ 62 ] The plan was for the accused and the complainant to meet after she dropped the boys at the birthday party. There was conflicting testimony as to who decided on the place to meet, but I find that although they mutually planned the get-together, it was the accused who chose the venue. To this end, he suggested a parking lot behind an old industrial space near to where the birthday party took place. The location was chosen for the privacy it would provide. While at the party, the complainant called the accused as discussed.

She left the party, and he left his home, to meet. [ 63 ] I find that the complainant arrived first and waited for the accused. Once he arrived, each drove further in behind the facility where they parked their vehicles side by side. The complainant left hers and got in the passenger side of the accused’s pickup truck. [ 64 ] The complainant testified that the purpose for meeting was to discuss where the relationship was going. The accused testified that they agreed to get together for a “quickie”, that is, sex. [ 65 ] It was agreed that at first in the accused’s vehicle, the two talked.

He testified that they kissed and petted; that is, she touched his penis and he touched her breasts. When asked whether they kissed, the complainant could not remember. However, she denied any petting. This failure to recall whether she and the accused kissed in the truck is in sharp contrast to her specific recall of the other aspects of what she claims occurred.

I find that it was consistent with her downplaying her involvement in the sexual encounter that was to come. [ 66 ] The complainant testified that the accused, while on his side of the pickup truck, began to make sexual comments to which she responded she was only there to talk. He replied, “No come on, you know I like to try my women out first”. The complainant testified that the accused then pulled his pants and underwear down “below his bum” and masturbated. [ 67 ] As indicated, the meeting took place in the accused’s pickup truck.

Between the accused’s seat and hers, as shown in photographs admitted as evidence, was a large console comprised of an armrest that likely included a storage compartment. Although the complainant could not identify the vehicle from the photographs taken by the accused, her testimony was that “all vehicles have consoles”; although that may not be true, it does satisfy me that there was such a console in the vehicle in which the alleged sexual assault took place. [ 68 ] The complainant testified that the accused said he wanted to engage in sexual activity, but she said that she did not want to.

Then, with his pants part way down, the accused edged over to her side of the vehicle a little at a time because of the placement of his pants and the location of the console. [ 69 ] The complainant, according to her testimony, now had her back to her door. The accused reclined her seatback. The accused was now lying back against the seat. He then took her pants and underwear down to just below her “bum”.

She testified that she said, “I didn’t want to do that and I didn’t want that to happen”. [ 70 ] The complainant testified that the accused then took her by the waist, physically picked her up and placed her facing him on his penis, where he moved her up and down for 30 to 60 seconds. He did not wear a condom and she does not know if he ejaculated. She testified that she said, “That wasn’t supposed to happen and that’s not the reason for us meeting”. After a short while, she got off him. There was no suggestion of any attempt by the accused to continue the sexual activity.

Following that, the two remained in the truck and talked for another 5 or 10 minutes before she left. [ 71 ] The complainant testified that she left in her vehicle, went to a department store, and then to pick up the children at the birthday party. Later, she met the accused back at the department store parking lot where she dropped off his son.

There was no discussion about what had happened between them. [ 72 ] The complainant agreed on cross-examination that she and the accused would have had approximately half an hour together in the truck and that this would not be very much time to have a meaningful discussion regarding their relationship. [ 73 ] The accused’s testimony essentially aligns with the account by the complainant up until the time she got into his truck. He agreed that, initially, she was in the passenger seat and he was in the driver’s seat. He testified that they first talked and kissed and petted as described above.

She put her hand in his pants. Then he moved over to her seat. She could not get the seat reclined (the lever was located low on the seat towards the passenger door), so he did. He testified that they both had their shoes off. He then took one leg out of his pants and she took one leg out of hers. In addition, she removed her top and bra. The complainant then climbed on top of him – she with her back to the dashboard and his against the reclined seat.

They engaged in sexual intercourse for a short while but found it too uncomfortable in the vehicle. [ 74 ] The accused testified that after the sexual intercourse stopped, they remained in the vehicle and chatted for a while, including about getting together one evening early the next week during a meal break from her employment. The accused testified that the complainant told him about her work

schedule and the timing of her breaks. I find, despite testimony to the contrary by the complainant, that it is likely that the reason the accused knew about her work

schedule was because she told him. This is particularly so because there were no discussions between them after that night. [ 75 ] I note that the accused testified that the purpose of the get-together the next week would be to have sex. I accept that this was an inadvertent allusion to sexual activity made in the context of the res gestae of the event and not for any ulterior purpose. Nevertheless,

such a communication could fall under section 276(4) of the Criminal Code , being “communication made for a sexual purpose or whose content is of a sexual nature”. No

section 276 application was made in this regard, so I simply disregarded the stated purpose of the planned get-together (had the trial been before a jury, a corrective mid-trial instruction may have been required). Because the parties agreed to get together a couple of days later did not lead me to consider that the complainant was more likely to have consented to the sexual behaviour complained of, or for that reason, that she was less worthy of belief.

However, their agreement to get together socially at the next opportunity is another factor that I took into consideration in assessing the totality of the evidence in order to decide whether the Crown proved its case beyond a reasonable doubt. [ 76 ] Although the trial was not a contest to decide which of the two accounts I prefer, I find the testimony of the accused to be in greater harmony with the preponderance of probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions, to use the words of Faryna .

Whether or not the complainant went to the secluded location intending just to talk, the accused’s account of her behaviour while there is consistent with her giving consent to the sexual activity. Furthermore, the location and the short time that was available to them are more consistent with clandestine sexual activity than with a serious discussion about their relationship. [ 77 ] The complainant’s account of the sexual activity itself is concerning.

Aside from the difficulty the accused would have encountered getting over the console to her seat with his pants just down below his buttocks, physically grabbing her and lifting her up and on to him would have been physically challenging even in less confined quarters. This is not to say that it would be impossible, but it would have been physically awkward at best. [ 78 ] Counsel for the accused relied on the fact that the complainant did not flee from the vehicle as the sexual activity continued as support for the proposition that she consented.

I find that this does not assist me in my deliberations because there are many reasons why a person will not leave an assaultive situation. The complainant was in a vehicle with a person well known to her. To infer that her decision not to leave means she consented to intercourse is to engage in myths and stereotypes about how people, and women in particular, behave in certain circumstances. [ 79 ] Counsel for the accused also made much of the fact that the complainant did not go to the police on October 22 or 23. As noted previously, her husband laid the complaint on October 25. Nothing turns on this.

There are many reasons why a victim of a sexual assault will not report the assault or go to the police, or will delay doing so. Similarly, I have not considered the fact that the complainant did not go to the hospital to be checked or to have a “rape kit” administered as having any bearing on whether she consented to the sexual activity with the accused.

Finally, that she washed herself and her underwear before the complaint was made is not relevant to the issues before me. [ 80 ] I do find, however, that the complainant’s demeanor was telling during cross-examination when counsel for the accused asked her what she told M.G. on the phone the night of the sexual encounter. In response to the question being framed in several different ways, the complainant hesitated and responded that she told M.G. “what happened that night”, or “everything I told you today”.

Despite multiple opportunities to do so, at no point did she respond directly that she told M.G. that she had been sexually assaulted by the accused. [ 81 ] This must be considered in the light of M.G.’s testimony that on the telephone she could hear B.O. telling the complainant to tell her what she did. When the complainant refused, B.O. told M.G. something to the effect of, “They finally done the job.” M.G. took this to mean that the accused and the complainant had sex culminating from the clandestine relationship they had been developing over several months.

M.G. was challenged on this in cross-examination because she did not use those words with the police. She maintained that this was not an inconsistency because she simply did not provide the details to the police. I agree, especially in the context of her statement being given in relation to a charge of uttering threats laid against her. [ 82 ] This is an important point because, as mentioned previously, it was during cross-examination relating to her statement to the police that M.G. became upset on the stand.

She testified that it was while at the police station that she first learned that the accused had been charged with sexual assault. This upset her then and the memory of it upset her while she testified. This is consistent with her prior testimony that neither the complainant nor B.O. alleged a sexual assault while on the phone with M.G. that night.

Although the ultimate purpose of the call was not clear from the evidence, its immediate purpose appeared to be a continuation of the earlier communications between M.G. and B.O. relating to the secret activities of their respective partners. [ 83 ] This account by M.G. differs from the testimony of B.O. who said that he told M.G. that, “He done it against her will.” I have already addressed why I have assigned little weight to the evidence of B.O.

Based on the evidence as a whole, I find that neither B.O. nor the complainant told M.G. on the telephone that night that the complainant had nonconsensual sex with the accused. [ 84 ] I note as well that the complainant testified that during the long telephone call, M.G. said she could leave the accused, but ultimately, she did not. Furthermore, the complainant testified on cross-examination that she knew her relationship with the accused was over during that telephone call. This leads me to conclude that the complainant wanted to continue her relationship with the accused.

I find that it was only when the accused did not welcome the complainant over to his house that night and told M.G. to hang up the phone that it occurred to the complainant that she and he were not going to have the type of relationship she envisioned. [ 85 ] I find that the evidence as a whole, relating to what occurred before, during and after the sexual encounter, raises a reasonable doubt as to the complainant’s assertion that she, in her mind, did not want to have sex with the accused.

That is, the complainant’s testimony that she communicated to the accused that she did not consent to the totality of the sexual activity or to its individual components does not convince me beyond a reasonable doubt that she was sexually assaulted. The accused’s account that the sexual activity commenced by consent freely given in the pickup truck and continued with the complainant’s consent through to them amicably taking leave of one another with plans to meet again, leaves me with a reasonable doubt as to whether a sexual assault took place. [ 86 ] There is one final point that I will address in this regard.

Crown counsel suggested that I consider the accused’s post-offence conduct as evidence of his guilt, relying upon the Supreme Court of Canada decision in R. v. Rodgerson , 2015 SCC 38 . The Crown asked me to accept as circumstantial evidence that the accused, by uttering the threats with which he is charged, also committed the

sexual assault. To his credit, Crown counsel acknowledged that there are alternate explanations for the accused’s behaviour. First, the accused may have reacted that way to a false accusation of sexual assault, and, second, he may also have reacted that way to the complainant disclosing their consensual sexual activity to her husband and his partner. I agree with these latter points.

Given the range of possible reasons why the accused would react strongly to the disclosure of his sexual activity with the complainant, the suggested post- offence conduct does not help me in my determination of whether the Crown proved the sexual assault beyond a reasonable doubt. This is aside from my findings on the relevant count of uttering threats as will be explained below. [ 87 ] Based upon the totality of the evidence, I find that the Crown has not established the actus reus of the charge of sexual assault. In that event, I need not consider the mens rea element of the offence.

The accused shall be acquitted on Count No. 1.

Two Counts of Uttering Threats to Cause Death or Bodily Harm; One Count of Uttering Threat to Burn Real or Personal Property [ 88 ] It is in the context of my findings regarding the alleged sexual assault, and my assessments of the credibility of B.O., the complainant, the accused and M.G., that I must consider the three counts of uttering threats. [ 89 ] On each of the two counts of uttering threats to cause death or bodily harm, Crown counsel must prove beyond a reasonable doubt each of these essential elements: that the accused made a threat to cause death or bodily harm to B.O. and/or the complainant, as the case may be; and that the accused made each threat knowingly.

Similarly, on the count of uttering a threat to burn real or personal property, Crown counsel must prove beyond a reasonable doubt each of these essential elements: that the accused made a threat to burn real or personal property of B.O. and the complainant; and that the accused made the threat knowingly. Count No. 2 [ 90 ] The Indictment alleges that on or about October 23, 2016, the accused uttered a threat to kill or cause bodily harm to the complainant.

Therefore, Count No. 2 relates to utterances of the accused allegedly made while B.O. and the complainant were on the telephone with M.G. sometime after 1:00 a.m. on October 23, 2016. [ 91 ] It was alleged that on that night, during the long telephone conversation among B.O., the complainant and M.G., the accused was heard in the background making a threat towards the complainant. According to B.O., M.G. went upstairs to wake up the accused who was upset that he had been awoken. B.O. testified that the complainant said she would go and speak with M.G.

The accused was heard to say, “If she comes in here, she’ll leave in an ambulance”. The complainant testified that she also heard the threat directed towards her. [ 92 ] Both the accused and M.G. deny that the accused made any threat whatsoever. The accused testified that he was upstairs in bed while M.G. was on the phone downstairs. Although he had a “good idea” of who was on the call and he could hear M.G. speaking loudly, he chose to ignore it as best he could. He testified that he figured B.O. had learned about the sexual encounter with the complainant, so it was not good.

When M.G. tried to come up the stairs to ask him to join the conversation, he testified that he told her to hang up the phone. [ 93 ] M.G. testified that B.O. was very angry while on the phone that night. He and the complainant could be heard arguing with each other on the other end of the line. M.G. testified that in addition to telling her that, “They finally done the job”, B.O. said that he had told her that this would happen. He was angry that the complainant left the children at the birthday party to meet up with the accused. M.G. described threatening remarks by B.O.

She denied that the accused was ever on the line or that he said anything threatening. She testified that she went to the bottom of the stairs and told the accused that the complainant wanted to talk to him.

He told her to get off the phone but she ignored him and went back into the living room to continue the conversation with B.O. and the complainant. [ 94 ] Based upon the conflicting evidence, and given my assessment of the credibility of each of the witnesses, I am unable to find that the Crown has proven the charge of uttering threats to cause death or bodily harm to the complainant beyond a reasonable doubt. The accused will be acquitted on Count No. 2.

Counts No. 3 and 4 [ 95 ] The allegations of threats that form the basis of Counts No. 3 and 4 arise from an interaction between the complainant and B.O. on the one side, and M.G. on the other, on October 25, 2016. The complainant and B.O. allege that threats against them were made by the accused. The accused and M.G. deny this. [ 96 ] In his summation, Crown counsel asked whether the accused’s denial of the threats rings true. He submitted that there was a lot of emotional vitriol and animosity between M.G. and the complainant and B.O. From this, he asked me to infer that the accused made the threats as alleged.

I agree that the interactions between those three people became emotionally charged. No doubt, harsh words were exchanged. There may even have been threats thrown back and forth. Certainly, M.G. alleges that threats were made by B.O. and the complainant towards her and the accused. M.G. also admits to reaching in through the car window and grabbing on to the complainant during the altercation at the gas station.

Whatever may have occurred between the complainant, B.O. and M.G., however, my task is to determine whether the Crown has proven beyond a reasonable doubt that the accused uttered the threats for which he is charged. [ 97 ] B.O. said nothing in his direct examination regarding threats made on October 25. He simply testified he did not think there were any more phone calls (presumably after the call on October 23). He said he saw M.G. at the gas station “the next day” and that some things were said as the parties’ cars passed one another on the road.

On cross-examination, he was asked about any interaction between M.G. and the complainant at the gas station. He said there was no incident, just some bickering between them. He agreed that someone made some threats and that is why he went to the police. Furthermore, he did not identify what the threats were or who made them.

[ 98 ] In her direct evidence, the complainant testified that on the morning of October 25 she was shaken up because she had been threatened. She provided no further details of the threats or by whom they were made. She testified that on that morning, following an encounter between her and B.O. with M.G. at the gas station, she and B.O. decided to telephone M.G. During that call, testified the complainant, M.G. was on the telephone but the accused could be heard in the background.

On cross-examination, the complainant testified that threats were made by both the accused and M.G. but that the threat by the accused was made at around 1:30 a.m. on the Sunday (this would appear to be the alleged threat that forms the basis of Count No. 2). [ 99 ] The complainant then testified that M.G. and the accused called her on the Tuesday morning and threatened to kill her, B.O. and their children, run them off the road and burn their house down. Although she testified that these threats were made by both of them, she did not specify who said what about whom.

Later in her cross-examination, the complainant testified that the October 25 telephone call was between B.O. and M.G. but that she could overhear what M.G. was saying because she was screaming. The accused was not on the telephone. She then agreed that it was because of the threats made by M.G. that B.O. went to the police and made the complaint. [ 100 ] Other than the above, the complainant provided no particulars of any threats made by the accused, other than the one alleged to have been made on October 23, until she was re-examined by Crown counsel at the end of her testimony.

She then testified that on October 25 she could hear the accused in the background when M.G. was on the phone with B.O. say he would kill all of them (meaning her, her husband and their children) and burn them down in their home. [ 101 ] I have given little weight to this last part of the complainant’s testimony. She was provided with opportunity to provide details of this allegation both in her examination-in-chief and in her cross-examination.

That she did not say anything specific regarding the threats allegedly made by the accused until prompted on re-examination, leads me to doubt the reliability of her account. [ 102 ] The accused testified that the complainant and B.O. called M.G. on her cell phone on October 25, 2016. M.G. was not on a speakerphone. He was in the garage and M.G. was in the yard. He could barely hear what was going on. He did not hear any threats made by M.G., or by the complainant and B.O. He denied making any threats himself. [ 103 ] M.G. testified that after the encounter at the gas station she was upset.

She called the complainant and B.O. and as she walked from the yard into the upper part of the garage, they answered the phone. She told the complainant not to come by her house because she had caused enough trouble. M.G. testified that she was upset and angry. She thought that the accused could hear her because she was shouting, but not what she was saying. She testified that the accused made no threats towards the complainant, B.O. or their property. On cross-examination, M.G. agreed that she had told the police that the accused was yelling in the background.

She responded that she does not recall him yelling that day and she testified that he did not make any threats. [ 104 ] Notwithstanding certain inconsistencies in the accounts by the accused and M.G., the Crown has not proven Counts No. 3 and 4 beyond a reasonable doubt. This is because of the lack of any meaningful testimony in this regard from B.O., the unsatisfactory testimony by the complainant, and the denials by the accused and M.G.

Consequently, I am not satisfied beyond a reasonable doubt that the accused threatened to cause death or bodily harm to the complainant or B.O. or that he threatened to burn their real or personal property. [ 105 ] The accused will be acquitted on Counts No. 3 and 4. disposition [ 106 ] The accused is acquitted on Count No. 1 – sexual assault, contrary to section 271(1) of the Criminal Code . [ 107 ] The accused is acquitted on Count No. 2 – uttering threats against the complainant, contrary to

section 264.1(1) (

a) of the Criminal Code . [ 108 ] The accused is acquitted on Count No. 3 – uttering threats against the complainant and B.O., contrary to

section 264.1(1) (

a) of the Criminal Code . [ 109 ] The accused is acquitted on Count No. 4 – uttering threats to burn real and personal property of the complainant and B.O., contrary to

section 264.1(1) (

b) of the Criminal Code . _____________________________ Robert P. Stack Justice