R. v. Hillier, 2021 NLSC 108

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hillier , 2021 NLSC 108 Date : August 10, 2021 Docket : 201903G0175 Her Majesty The Queen v. Marcus Hillier 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Glen L.C. Noel Oral Reasons for Judgment Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: June 22 – 25, 2021 Date of Oral Judgment: August 10, 2021

Summary: The Accused was charged with one count of sexual assault under

section 271 of the Criminal Code . The Court concluded the evidence did not establish lack of consent on the part of the Complainant sufficient to support a finding of guilt on the criminal standard, and the Accused was acquitted of the charge. Appearances:

Tina M. Walsh, Q.C. Appearing on behalf of the Crown Derek P. L. Ford Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Hillier, 2021 NLSC 21; R. v. Ewanchuk, 1999 SCC 711; R. v. J.A., 2011 SCC 28; R. v. Barton, 2019SCC 33; R. v. Hutchinson, 2014 SCC 19; R. v. M.L.M., (SCC), [1994] 2 SCR 3; R. v. Davis, (SCC),[1999] 3 SCR 759; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. Kennedy., 2015 NLCA14; R. v. Mah, 2002 NSCA 99; R. v. H. (C.W.), (BC CA), 1991 3 B.C.A.C. 205 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 ORAL REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Accused, Marcus Hillier is charged with committing a sexual assault on the Complainant, J.H., contrary to

section 271 ofthe Criminal Code, R.S.C. 1985, c. C-46. [2] There is no dispute that sexual activity took place between J.H. and Mr. Hillier over the course of one evening and involvedanother young man, B.D. [3] One of the most difficult tasks a trial judge faces is to make credibility and evidentiary assessments in a sexual assault trial. The outcome leaves a profound impact on the parties involved. No victim of sexual assault should feel further traumatized by thecriminal trial process. [4] J.H. firmly holds the belief that she did not consent to the sexual activity in question with Mr. Hillier.

She honestly believesthe evidence about her lack of consent to be true. [5] The purpose of a sexual assault trial is to determine whether a criminal offence has been committed. Mr. Hillier’s liberty is atstake. He sits here today fearful of wrongful conviction. It would be an injustice for me to convict him of the offence of sexual assaultand the serious consequences that flow from conviction, unless the criminal law standard of proof is met.

Accordingly, I must scrutinizeall of the evidence with great care and attention. [6] The Crown’s case consisted of two witnesses – the investigating police officer, Constable C. Bryan and J.H. The Defencecalled B.D. as a witness, and Mr. Hillier testified in his own defence.

Issue [7] The issue I must decide is: Did J.H. subjectively consent to the sexual activity in question under s. 273.1(1) of the Code? [8] Consent is “the voluntary agreement of the complainant to engage in the sexual activity in question.” [9] The defence of honest but mistaken belief in communicated consent does not arise, unless I am satisfied that the actus reus ofthe offence has been established beyond a reasonable doubt. baCKGROUND Non-contentious Facts [10] The one count of sexual assault arises from the date of 1 December 2018 in the Town of Bishop’s Falls. J.H. met Mr.

Hillierthrough a mutual friend, B.D., in the autumn of 2018. J.H. testified it was in 2019 they first met, but nothing turns on her inability toremember the date or the date the sexual activity occurred. [11] J.H. and B.D. were both attending the same post-secondary institution. They became friends, and B.D. described theirrelationship as having “feelings for each other.” Mr. Hillier and B.D. had been best friends since the age of 10 up until the evening of

the sexual activity between the three of them. Mr. Hillier testified he and J.H. were “just acquaintances” through B.D. [ 12 ] J.H. and B.D. arrived together at Mr. Hillier’s basement apartment. It was dark out. The specific time of the arrival is not material. There were two couches in the living room. J.H. and B.D. sat on one couch and Mr. Hillier on the other. They talked and listened to music. [ 13 ] Mr. Hillier and B.D. were drinking beer and had consumed about seven or eight.

J.H. said she had only one or one and a half “Mike’s Hard Lemonade” and was feeling “100% fine.” Prior s. 276 Ruling [ 14 ] In a prior oral decision regarding Mr. Hillier’s Application under s. 278.93(1) of the Code to determine the admissibility of evidence of the Complainant’s sexual activity under s. 276, I held that the Accused could not question the Complainant, B.D., or otherwise lead evidence on other sexual activity between the Complainant and B.D . ( R. v. Hillier , 2021 NLSC 21 , at para. 15 ). [1] Mr.

Hillier did inadvertently testify on direct, without objection from the Crown, to kissing he viewed between J.H. and B.D. on the couch immediately before they went into the bedroom. I am ruling that evidence pertaining to the kissing and how J.H. and B.D. reacted to each other at that moment inadmissible because of my prior ruling. [ 15 ] I will begin at the point in time when J.H. and B.D. return to the living room from the bedroom. Some time later, they return to the bedroom, and it was during this occupancy of the bedroom that Mr.

Hillier joined them. [ 16 ] The “sexual activity in question” forming the subject matter of the charge is what occurs when Mr. Hillier joins J.H. and B.D. in the bedroom. Positions of the Crown and the Defence [ 17 ] The Crown’s position is that J.H. did not communicate her consent to any sexual activity between her and the Accused that occurred after he enters the bedroom. Alternatively, the Crown submits even if the Court finds there was consent to Mr. Hillier joining J.H. and B.D. for sexual activity, there has to be consent to each and every one of a number of different sex acts.

There was no talk or communicated consent to the use of handcuffs, rough sex, and J.H. being left with bite or bruising marks. [ 18 ] The Defence position is that the Complainant was a willing participant in the sexual activity. Counsel for Mr. Hillier submits there are several concerns about the credibility and reliability of J.H., which make her evidence dangerous to rely upon. It is submitted she had a consensual sexual encounter with Mr.

Hillier and B.D. in which she played a role and later regretted, and this has altered her perception and recollection of events, including most importantly her own state of mind at the time the sex acts were occurring. The sexual activity may have gotten “a little awkward, a little weird, and perhaps even a little rough,” but J.H. voluntarily agreed to it and continued until she said she was “done.” [ 19 ] The Defence further submits Mr.

Hillier was a credible witness and his evidence, taken as a whole with the totality of all the evidence, leaves a reasonable doubt on both the actus reus and mens rea of the offence, requiring an acquittal. analysis LEGAL FRAMEWORK [ 20 ] I will now explain the elements of the offence, the legal meaning of consent, and the reasonable doubt principle in the context of the Accused having testified. Elements of the Offence [ 21 ] The Crown has the burden of proving beyond reasonable doubt that Mr.

Hillier committed the actus reus (the action or conduct element) and had the necessary mens rea (guilty mind). [ 22 ] The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent ( R. v. Ewanchuk , 1999 SCC 711, at para. 25; R. v. J.A. , 2011 SCC 28 , at para. 23 ; R. v. Barton , 2019 SCC 33 , at para. 87 ). There is no issue that there was touching for a sexual purpose.

The case revolves around the third element on the absence of consent. [ 23 ] The absence of consent is determined subjectively, by reference to J.H.’s internal state of mind toward the touching at the time it occurred: Ewanchuk , at para. 26; J.A. , at para. 34 ; Barton , at para. 88 . The question I must answer is whether J.H., in her mind, wanted the sexual touching to take place. [ 24 ] J.H. testified she did not consent to any of the sexual activity that occurred after Mr. Hillier entered the bedroom. I will have to determine whether I believe her and accept her evidence beyond a reasonable doubt.

If I do, there was no consent and this element of the offence is proven. A Two-Step Process [ 25 ] In R. v. Hutchinson , 2014 SCC 19 , at paras. 4 and 64-66 , the Supreme Court of Canada set out a two-step process for analyzing consent, or the lack thereof, to sexual activity:

(1) Does the evidence establish beyond a reasonable doubt that there was no “voluntary agreement [by] the complainant to engage in the sexual activity in question” (s. 273.1(1))? To answer this question, I will consider the factors set out below under the “Meaning of Consent for Actus Reus .” If the answer is no, the second step must be undertaken.

(2) If J.H. consented to the sexual activity in question, or if a reasonable doubt arises as to her lack of consent, are there anycircumstances that may vitiate her apparent consent? To answer this question, I will consider ss. 265(3) and 273.1(2) (3), which areexplained under “Vitiation of Consent.”

(1) Meaning of Consent for Actus Reus [26] Whether J.H. subjectively consented in her mind at the relevant time is a question of fact. I must assess J.H.’s direct evidenceas to her state of mind at the time and determine credibility in light of all the evidence, including evidence of J.H.’s “words or actions,before and during the incident” (Ewanchuk, at paras. 29-30). At this stage, Mr. Hillier’s perception of J.H.’s state of mind is irrelevant(Barton, at para. 89). [27] Consent to one act does not amount to consent to another act.

For example, consent to kissing cannot be taken as consent toother sexual activity. Consent must be given for “each and every sexual act” engaged in: J.A. at para. 34; and Hutchinson at para. 54. [28] Consent must also be contemporaneous with the activity in question. Subsection 273.1(1.1) of the Code provides that“[c]onsent must be present at the time the sexual activity takes place.” [29] Subsections 273.1(2)(

a) and (

e) make clear B.D. could not give consent for J.H., and J.H. could revoke her consent to engagein sexual activity at any time. [30] Consent cannot be implied by J.H.’s “silence, passivity, or ambiguous conduct”: Ewanchuk, at para. 51. There is norequirement that J.H. offer “some minimal word or gesture of objection” in order to be found not to have consented: R. v. M.L.M., (SCC), [1994] 2 SCR 3; and J.A. at para. 37.

(2) Vitiation of Consent [31] Subsections 265(3) and 273.1(2) of the Code list a variety of situations where consent to sexual contact is vitiated. Subsection273.1(3) clarifies that circumstances beyond those listed in s. 273.1(2) may also operate to vitiate consent. [32] The relevant provisions based on J.H.’s evidence are the application of force and threats or fear of the application of force. If Ifind that she did not want to be sexually touched, and that she decided to permit or participate in sexual activity because Mr. Hillierapplied force to her or B.D., her consent will be vitiated.

Likewise, if she permitted or participated in sexual activity from an honestlyheld fear of the application of force to her or B.D., her consent is vitiated. [33] Whether fear vitiated consent is determined subjectively. Such fear need not be reasonable or communicated to Mr. Hillier; itneed only be the actual reason for submission. “The plausibility of the alleged fear, and any overt expression of it,” remains relevant tomy assessment of her credibility: Ewanchuk at paras. 39 and 62.

Mens Rea and Defence of Honest But Mistaken Belief in Communicated Consent [34] Unless the actus reus of the offence is made out, the mens rea element (and the defence that Mr. Hillier advanced in honest butmistaken belief in communicated consent) does not come into consideration: R. v. Davis, (SCC), [1999] 3 SCR 759, atpara. 81. The Reasonable Doubt Principle Where Accused Has Testified [35] As in any criminal case, I must apply the concept of reasonable doubt based upon the evidence before the Court. That requiresthat I am sure of Mr. Hillier’s guilt.

It is not, as the Crown points out, a speculative doubt, but one “logically derived from the evidenceor absence of evidence”: (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at para. 39). The standard of proof beyond areasonable doubt is more than a probability and much closer to “absolute certainty”: (R. v.

Starr, 2000 SCC 40, at para. 242). [36] I cannot approach my assessment of the evidence based upon sympathy for the Complainant or the Accused, or on outmodedand prejudicial assumptions. [37] In applying the doctrine of proof beyond a reasonable doubt, I have to be mindful that it is the cumulative effect of all theevidence that must satisfy the standard, not each individual piece or item of evidence: (R. v. Kennedy, 2015 NLCA 14, at paras. 5-7). [38] Finally, since Mr.

Hillier testified and denied certain facts relied on by the Crown in support of the charge, the assessment ofcredibility is a very important issue for consideration. It is not my role to resolve the broad factual question of what happened. Myfunction is the more limited one of deciding whether the essential elements of the charge have been proven beyond a reasonable doubt. If after consideration of all the evidence, I am unable to decide whom to believe, I must acquit: (R. v. Mah, 2002 NSCA 99, at para. 49;and R. v. H. (C.W.), (BC CA), 1991 3 B.C.A.C. 205).

APPLICATION OF THE LAW TO THE FACTUAL FINDINGS Did J.H. subjectively consent to the “sexual activity in question” under s. 273.1(1) of the Code? [39] Credibility assessments are made in the context of the evidence before the Court. A finding that I do not believe some part oftestimony of a witness does not mean that I reject all of the testimony of that witness. Any assessment I make on the veracity andreliability of evidence is made on the criminal standard of proof.

If I do not accept evidence or have a reasonable doubt on the evidence,I have to identify the concern and say why. [40] I agree with the Crown and find Mr. Hillier was the one directing the sexual activity in question; and he was louder, moreaggressive and rougher with J.H. than he indicated in his testimony. A conviction must stand on more than rejection of some of Mr.Hillier’s evidence, but rather on consideration of whether the Crown has met the burden of proof on a totality of the evidence.

[ 41 ] A person may perceive and honestly hold something to be true in their mind, but it can fail to meet the criminal standard of proof for acceptance by the trier of fact. [ 42 ] J.H. testified she did not consent to any part of the sexual activity that happened after Mr. Hillier entered the bedroom. I will explain why I have a reasonable doubt as to the veracity of her testimony, and why I do not accept her evidence that the reason for participating in the sexual activity was due to intimidation and fear. [ 43 ] I find that J.H. wanted to participate in sexual activity with Mr. Hillier that evening.

However, the more problematic aspect of the consent issue is, on the requisite standard of proof, can I conclude whether she gave her subjective consent by her words or actions to all of the sexual activity that occurred between her and Mr. Hillier. How It Begins [ 44 ] I accept Mr. Hillier’s evidence on how it begins. At a time when B.D. was not in the living room, J.H. indicated to Mr. Hillier that she believed she had B.D. convinced about “the threesome.” There was no conversation of a threesome that evening before this point. I do not believe J.H.’s evidence that she made the comment about a threesome to Mr.

Hillier sarcastically and “as a joke” in response to Mr. Hillier saying, “[i]t wasn’t fair that B.D. could, but he couldn’t.” [ 45 ] With B.D. back in the living room and sitting on the couch with J.H., J.H. gets up and goes over to the other couch with Mr. Hillier. She sits in his lap and gives him a kiss. In cross-examination J.H, conceded, “it was a really long kiss” and admitted the kiss was consensual. [ 46 ] B.D. did not like J.H. kissing Mr. Hillier. J.H. stated B.D. was showing signs that he was upset or mad. Both J.H. and Mr.

Hillier were talking to B.D. and asking, “what’s wrong” and “don’t be mad.” He was not responding. [ 47 ] There is conflicting evidence as to what happens after J.H. kissed Mr. Hillier. J.H. testified she asked B.D. if he wanted to go talk in Mr. Hillier’s bedroom. She said they were in the room for about 10 minutes, when Mr. Hillier came to knock on the door indicating he had to go somewhere for 10 minutes. J.H. testified to Mr. Hillier knocking on the door only once at which time he entered the bedroom. Mr. Hillier and B.D. gave evidence on Mr.

Hillier knocking at the door on a second occasion before he entered the room. I do not need to resolve the factual dispute of whether Mr. Hillier came back a second time before he finally entered the room. [ 48 ] B.D. testified he went into the bedroom after seeing J.H kissing Mr. Hillier because he “didn’t like it” and he was “upset.” Mr. Hillier followed him into the bedroom, and told him that it did not have to go any further, and that he did not want to hurt him. When Mr. Hillier left the bedroom, J.H. entered the bedroom.

She and B.D. had a conversation, and B.D. said he did not feel he had reason to be upset because they were not dating. They went back to the living room and started drinking a bit more. He is not sure how it led to him and J.H. going back into the bedroom. [ 49 ] Mr. Hillier confirmed he went into the bedroom to check on B.D., and B.D. told him that he could not watch her kiss him. Mr. Hillier left the room with B.D.’s assurance they were still on good terms. [ 50 ] Mr. Hillier went back to the couch with J.H.’s feet touching his thigh, and he was rubbing her calf area. They were discussing B.D. being upset.

She told Mr. Hillier she was sad or upset that B.D. did not want the threesome. He said to her, “it’s okay, nothing has to happen. I am good either way.” She indicated she wanted to go talk to B.D. She went into the bedroom with B.D. and shut the door. [ 51 ] Sometime later with J.H. and B.D. in the bedroom, Mr. Hillier knocked on the door to say he was going up the road. B.D., in his evidence stated, after Mr. Hillier came to the door, J.H. asked him if she could invite Mr. Hillier in. He told her he was uncomfortable with it. Even though he was initially uncomfortable with Mr.

Hillier entering the room, he ended up agreeing to it. I accept B.D.’s evidence that J.H. wanted Mr. Hillier to come into the bedroom. Entry into the Bedroom [ 52 ] J.H. had no clothes on when she went to the door and answered Mr. Hillier’s knock on the door. I accept Mr. Hillier’s evidence that she guided him into the room. She took him by his arm and told him, “[d]on’t be foolish, you can come in.” [ 53 ] J.H.’s evidence is that when Mr. Hillier entered the room B.D. was on the bed on his back, wearing just a tank top, with his head toward the foot of the bed.

She testified that she and B.D. continued having sex, and Mr. Hillier sat on the floor at the foot of the bed. [ 54 ] I do not find the three reasons J.H. gave in answer on cross-examination for letting Mr. Hillier into the bedroom to be credible. Her testimony was: (

i) she felt sorry for Mr. Hillier; (ii) she was intimidated by and scared of him; and (iii) she felt she had to let him in because B.D. told her. She felt sorry because it was Mr. Hillier’s house, and they had left him alone. She said it was B.D.’s choice and “she was going to listen to B.D., obviously.” The evidence establishes the reason she wanted Mr. Hillier in the bedroom was to engage in sexual activity with both B.D. and Mr. Hillier. [ 55 ] The only one that did not want a threesome that evening was B.D.

This is consistent with his evidence that most of the time while the three were engaged in sexual activity he had his face covered. He stated, “I wasn’t really into it. Just trying to like keep my mind occupied.” J.H. asked him if he was okay when she was “trying to perform oral sex on me.” He said to her, “[y]es just – like keep going.” [ 56 ] J.H. had her credibility seriously undermined by her claim of fear and intimidation and the explanation she gave for such.

She said she got a bad feeling from the moment she walked in the door that evening, and when the other girl who she thought was going to be joining them did not show up. When asked what Mr. Hillier had done up to the time he entered the bedroom to scare or intimidate her, she stated earlier that day B.D. had told her about “domestic abuse” charges against Mr. Hillier. B.D. denied he had said any such thing to her. Her conduct in kissing Mr. Hillier and “joking” about a threesome is not consistent with her being uncomfortable around him and

in fear of him. [ 57 ] I have a reasonable doubt on J.H.’s claim of subjective fear, threats, or intimidation. I do not find her evidence credible that B.D. intimidated her in the bedroom to open the door, and Mr. Hillier intimidated her by standing in front of her in the door while she was naked. She claimed she turned to B.D. for direction on what to do. I am unable to accept her evidence that she did not object to B.D. because “she was scared in a house with two men who were drunk.” I do however accept her evidence that both Mr.

Hillier and B.D. were intoxicated having consumed the amount of alcohol they indicated, and Mr. Hillier may have been at times “very loud.” Commencement of the Sexual Activity in Question [ 58 ] The first of sexual activity in question commences by Mr. Hillier touching J.H.’s buttock. [ 59 ] He did not ask her for permission. He asked B.D. if he could “touch her butt.” Another person cannot give consent to sexual touching.

Keeping in mind it is the cumulative effect of all the evidence and not each individual piece, I find her expressed words and actions leading contemporaneously up to this moment establish that J.H. was in voluntary agreement to engage in the commencement and nature of the sexual touching by Mr. Hillier. [ 60 ] While it is not my role to resolve specifically what happened in the bedroom between J.H. and Mr.

Hillier, I approach the scrutiny of J.H.’s evidence on the sexual activity in question from the perspective of two further credibility concerns I have about her evidence when considered with the totality of the evidence. [ 61 ] The first is her inconsistent prior statement that she gave to the police with her evidence at trial. In her Police Statement, Cst.

Bryan asked her whether she wanted the threesome to happen right up to a certain point and then, “[y]ou weren’t enjoying it anymore.” Her response was: “[t]hat’s right.” Her trial testimony was she was not a willing participant in any of it, and emphatically stated, “[a]bsolutely not.” On cross-examination when the Police Statement was put to her she said, “I don’t know why that was my response,” and she was “confused” on that part of the Statement and it was “incorrect.” Cst. Bryan interviewed J.H. and took her Statement just one week following the date giving rise to the charge.

Events would have been fresh in her memory. [ 62 ] I must consider whether J.H. had been traumatized by the alleged sexual assault, thus clouding her recollection of what she told Cst. Bryan. She testified that from the time when Mr. Hillier first put his hands on her in the bedroom, she felt “horrible” and “disgusting.” The next day she “felt like garbage. Dirty.” [ 63 ] I accept her evidence about how she felt about herself and the subject event the next day.

What I do not accept, and have a reasonable doubt about, is her memory and present recollection about how she felt while the sexual activity was taking place. I find she was not confused on what she told Cst. Bryan and it was not incorrect. [ 64 ] The second and even more significant credibility finding is that I am accepting the evidence of Mr. Hillier and B.D., and rejecting the evidence of J.H., that during the course of the sexual activity in question J.H. clearly verbalized and expressed her desire to have vaginal intercourse.

B.D. testified that at some point when he was performing oral sex on J.H., she said, “[i]f both of you don’t have sex with me in the next five minutes, I am gonna be done.” Mr. Hillier corroborated this and testified that she said, “[i]f one of you guys don’t fuck me in the next five minutes, I’m done.” J.H. denied saying any such thing and she was “absolutely sure” she never said that. [ 65 ] I find J.H. did express a desire for vaginal intercourse. It is consistent with Mr. Hillier’s and B.D.’s evidence that each could not get an erection.

It is also consistent with B.D.’s testimony on re-direct that he never wanted a threesome but, “I tried to do it for her because she wanted to do it.” [ 66 ] The Crown points out giving consent to vaginal intercourse does not mean she gave consent to more invasive forms of sexual activity, such as the use of handcuffs and rough sex. The Hickey on Her Neck [ 67 ] I find Mr. Hillier did leave a hickey on J.H.’s neck. The photos entered into evidence show a mark on the neck. Mr. Hillier stated soon after entering the bedroom he kissed her neck, and he admitted the kiss could have caused a hickey.

B.D. also testified, “I think he gave her a hickey on the neck.” Even though Mr. Hillier never asked for permission to put a hickey on her neck, I am satisfied, in light of J.H.’s own actions and participation in the more invasive consensual sexual acts that followed, there is reasonable doubt on her denial of consent to the kiss and hickey on the neck. Use of Handcuffs [ 68 ] I accept Mr.

Hillier’s evidence that J.H. voluntarily agreed to the use of handcuffs and the short duration that they were on her wrists. [ 69 ] I have a reasonable doubt on J.H.’s evidence that she did not want the handcuffs put on her or that she agreed out of force, fear, or threats from Mr. Hillier. [ 70 ] Mr. Hillier testified the handcuffs went on almost immediately after he entered the room. The handcuffs were stainless steel with a plastic connection. He showed her the handcuffs by dangling them above his head.

I accept his evidence that J.H. had a “positive response” in the form of “a smile or smirk.” The Crown in cross-examination referred Mr. Hillier to his s. 276 Application; he made no mention of her smiling or smirking.

I do not find this to be inconsistent, as the material facts in the Application (at para 12), adopted by his Affidavit in support, did state, “[s]he placed her hands behind her back voluntarily.” He testified he held her left hand and “without using force she put her hand behind her back, and the second hand was all her.” She was standing up after the handcuffs went on. [ 71 ] B.D. testified he could not remember anything about the handcuffs. The Crown questioned him on his Police Statement that

stated Mr. Hillier “handcuffed her behind her back.” Although the Statement is inconsistent with his trial memory, I find B.D. was a truthful and reliable witness. He maintained, that most times his eyes were closed or he had them covered during “the whole thing, so I really didn’t see.” [ 72 ] My assessment of his evidence is that he was very uncomfortable with the situation and did not want to see what was happening.

This is entirely consistent with him not wanting to participate in “the threesome,” and a plausible explanation for wanting to flush or suppress some aspects of what happened that evening from his memory. He was put in a situation by Mr. Hillier and J.H. that he did not want to be in. [ 73 ] J.H. testified after the handcuffs were on, Mr. Hillier told her to sit on B.D.’s face.

Her evidence was she did not want to do that. [ 74 ] I do not know whom to believe on what happened when J.H. was handcuffed, and I am left with a reasonable doubt on the evidence regarding whether it happened as J.H said that it did and her state of mind at the time she was in handcuffs. [ 75 ] J.H. testified Mr. Hillier pulled on her hair trying to keep her up on B.D. She could not keep her balance and was falling forward and backward. He was getting frustrated because she was not moving right and doing what she was supposed to be doing to B.D.

She said he was screaming when she was on B.D.’s face: “I’m getting so angry. I’m so mad.” He also said, “I was a freak and that’s what I liked.” She stated Mr. Hillier removed the handcuffs after “a long time.” [ 76 ] Mr. Hillier denied she was performing a sexual act when the handcuffs were on her wrists. He said the handcuffs were on for “maybe 20 seconds” because it was “very awkward.” He took them off. The handcuffs were not key-locked and they were quite easy to open and remove by pressing a pin.

He denied pulling on her hair or screaming any of the things J.H. claimed. [ 77 ] B.D. did not hear any yelling but did say he heard a raised voice. Since B.D. had his eyes closed or covered for most of it, it is understandable that he may not have seen what was happening while J.H. was in handcuffs. Even with his eyes closed, it is implausible that he would have completely blocked out or missed J.H. sitting on his face and her falling forward and back while on him. [ 78 ] I am left not knowing what or whom to believe on sexual activity with the handcuffs.

Sexual Activity after the Handcuffs [ 79 ] The sequence of the sexual activity after the handcuffs is uncertain. I am satisfied though B.D. performed oral sex on her; J.H. performed oral sex on B.D.; and Mr. Hillier performed oral sex on J.H. I am left with a reasonable doubt on J.H.’s evidence that the oral sex and other sexual activity was without her consent or because she was forced to do so. [ 80 ] She testified Mr. Hillier told B.D. to perform oral sex on her and B.D. came up from the foot of the bed and held down one leg and Mr. Hillier the other.

She said this went on for five or six minutes, and she was telling them to stop. She was asked in her direct evidence when was the first time she started saying stop. She stated it was when B.D was performing oral sex on her. [ 81 ] B.D.’s evidence contradicted her evidence on when she said she wanted to stop and she was done with the sexual activity. I accept the evidence of B.D. that the first time he heard her say stop or she was done was after Mr. Hillier went to the washroom. He testified: “I feel if I had heard her say stop before I would have stopped because I didn’t want to be doing it.

So I would have stopped too.” I do not accept her evidence that she told Mr. Hillier to stop when she says that she did, and this causes me to have a reasonable doubt about her subjective mind and lack of consent. [ 82 ] I accept Mr. Hillier’s evidence that he did not force her head and neck when she was performing oral sex on B.D. I accept his evidence that he performed oral sex on her while she was doing so on B.D., and he was at times “rubbing her vagina and fingering her.” [ 83 ] On the totality of the evidence, I reject her testimony that she felt manipulated by both B.D. and Mr.

Hillier and her thought process: “[t]o do whatever they wanted me to do and get it over with.” I do not believe she “was convinced she had no choice,” and cannot accept her evidence that as soon as the whole thing started her body shut down and she “felt numb the entire time.” How It Ends [ 84 ] Mr. Hillier testified he was having difficulty getting an erection. He went to the washroom to relieve himself with the intention of coming back to join J.H. and B.D. and partake in the vaginal intercourse. [ 85 ] I accept Mr.

Hillier’s evidence that when he returned to the bedroom J.H. was standing up side-on to him and B.D. was sitting on the edge of the bed. He put his hand around her breast and started rubbing. She says, “[n]o that’s it now, I’m done.” He pulled back and while still holding her breast said: “Oh really?” B.D. said, “[y]eah, we’re done.” Mr. Hillier let go and backed away. They started getting dressed. B.D. corroborated Mr. Hillier’s testimony on how matters ended. I find Mr.

Hillier instantaneously let go of her breast and stopped the sexual activity in question when J.H. communicated she wanted no further part of it. The Next Day and the Physical Effects of the Sexual Activity [ 86 ] J.H. spent the night at B.D.’s house. He was surprised the next day to see bruising and marks on her. He testified that he advised her to go to the hospital. J.H. confirmed that he did. I accept B.D.’s evidence that he did not do anything to inflict bruising or marks on her. [ 87 ] B.D.’s actions and concern for J.H. is inconsistent with her evidence that both Mr.

Hillier and B.D. intimidated her on the evening of the sexual activity. [ 88 ] J.H. testified she took photos of her body and went to the hospital. She was having cramping pains in her stomach and vaginal

bleeding. She was in discomfort and pain for a week or two. The photos show the marks and bruising on her buttock, arm, and right leg and thigh. [ 89 ] I agree with the Crown it would be a “speculative doubt” that anyone other than Mr. Hillier inflicted the marks and bruising on J.H.’s body. Mr. Hillier admits it is possible that he was biting and slapping her on the buttock, and nibbling on her legs. He also admits he may have applied pressure to the areas showing marks on her leg and thigh. He admitted in cross-examination that at no point did he ask J.H. if it was okay to bite or slap her.

He stated he got no negative response from J.H. to any of the sexual acts or touching, and at times during “three-way oral sex,” he was asking if things were all good for both J.H. and B.D. Final Word on the Conduct of Mr. Hillier [ 90 ] Mr. Hillier’s evidence on not asking and seeking J.H.’s affirmative agreement to such invasive and aggressive physical acts is extremely concerning. The law does not permit any person to do whatever one pleases during sexual activity as long and until there is an objection or the other person says no.

Consent is required for “each and every act” that is part of the sexual activity in question. [ 91 ] Despite the troubling consequences of his actions and the fact that he admitted not seeking specific permission to slapping, biting, and rough sex, the focus remains at the actus reus stage on the mind of J.H. through her words and actions. If I have a reasonable doubt that her actions demonstrate a willingness to participate in each and every act of sexual activity, Mr. Hillier is free from conviction even though his conduct was teetering on dangerous grounds. [ 92 ] Notwithstanding my concerns about Mr.

Hillier’s own actions, he is entitled to the benefit of the criminal standard of proof. The difficulty I have in accepting the Crown’s position that J.H. did not consent to biting, slapping, or rough sex is I am unable to parse out what she did and did not agree to. The concerns I have articulated over J.H.’s credibility and reliability leave me with a reasonable doubt on her subjective state of mind to lack of consent at the time of the sexual activity in question. Conclusion [ 93 ] The evidence in this case falls short of the criminal standard of proof on the actus reus of the offence.

I have a reasonable doubt on whether the sexual activity in question was non-consensual. [ 94 ] I therefore find Mr. Hillier not guilty and acquit him of the charge of sexual assault. [ 95 ] I thank the parties for the respect shown to the Court, and both counsel for their professionalism and diligence in the presentation of the evidence and comprehensive submissions. ____________________________ GLEN L.C. NOEL Justice