2023 ONCJ 386, 2023 ONCJ 386

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

CITATION: R. v. H.W., 2023 ONCJ 386 COURT FILE No.: 0611-998-21-Y6 DATE: March 14, 2023 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HIS MAJESTY THE KING — AND — h.w. ( a Young Person ) Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on February 21, 22, and 24, 2023 Reasons released on March 14, 2023 Mr. Ayoub Ansari................................................................................................... for the Crown Mr.

Richard Allman.................................................................................. for the Young Person SCHWARZL, J.: REASONS FOR JUDGMENT 1.0: INTRODUCTION [ 1 .] The Defendant, H.W., and the complainant, E.L., were both students at a local high school. The parties also lived on the same street. They were in a romantic dating relationship between June and December 2020. After the relationship ended, they continued going to the same school. In mid-March 2021 E.L. went over to H.W.’s house around noon.

No one else was present when H.W. kissed, E.L., digitally penetrated her, then had full sexual intercourse with her. Both parties agree that the conduct was an application of force by H.W. on E.L. for a sexual purpose. [ 2 .] E.L. testified that she did not agree to any of the sexual conduct whereas H.W. gave evidence that E.L. was a willing participant in all of it. [ 3 .] The sole issue for me is whether the prosecution has proven beyond a reasonable doubt that E.L. did not consent.

This issue is composed of two sub-issues: first, whether E.L. consented to the sexual conduct; and second, if she did not, whether H.W. knew that she was not consenting. 2.0: APPLICABLE LEGAL PRINCIPLES

[4.] The court may believe none, some, or all of a witness's evidence: R. v. R.E.M. (2008), 2008 SCC 51 , 235 C.C.C. (3d)290 (S.C.C.) at ¶ 65; R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at ¶ 5. The court is entitled to accept parts of a witness's evidence andreject other parts. Similarly, the court can accord different weight to different parts of the evidence that it has accepted: R. v. J.H.(2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at ¶ 44. [5.] The vast majority of assault prosecutions turn on the evidence of the two principals - the complainant and the accused: R. v.S.C.M., [1997] O.J.

No. 1624 (C.A.) at ¶ 3. A verdict of guilty may, in appropriate cases, be safely founded on the evidence of a singlewitness, regardless of the offence or offences charged: Vetrovec v. The Queen (1982), (SCC), 67 C.C.C. (2d) 1 (S.C.C.);R. v. A.G. (2000), 2000 SCC 17 , 143 C.C.C. (3d) 46 (S.C.C.). However, reaching a verdict must not devolve into a merecredibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the unshiftingburden on the Crown of proof beyond a reasonable doubt: W.(D.) v.

The Queen (1991), (SCC), 63 C.C.C. (3d) 397(S.C.C.) at p. 409. [6.] It must be emphasized that mere disbelief of the Accused's evidence does not satisfy the burden of persuasion upon the Crown:W.(D.) v. The Queen, supra at p. 409. In other words, to use disbelief of the Accused's evidence as positive proof of guilt by movingdirectly from disbelief to a finding of guilt constitutes a legal error: R. v. Dore, (2004), (ON CA), 189 C.C.C. (3d)526 (Ont. C.A.) at p. 527; R. v. S.H., [2001] O.J. No. 118 (C.A.) at ¶ 4-6.

The court must not reach its verdict based on merely choosingbetween the defence and prosecution evidence. Instead, the court must be satisfied on the totality of all the evidence that there is noreasonable doubt as to the Accused's guilt: R. v. Austin (2006), (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.) at ¶19 –24; R. v. C.L.Y. (2008), 2008 SCC 2 , 227 C.C.C. (3d) 129 (S.C.C.); R. v. Dinardo (2008), 2008 SCC 24 , 231 C.C.C.(3d) 177 (S.C.C.) at ¶ 23; R. v. J.H.S. (2008), 2008 SCC 30 , 231 C.C.C. (3d) 302 (S.C.C.); R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 67; R. v.

Wadforth (2009), 2009 ONCA 716 , 247 C.C.C. (3d) 466 (Ont. C.A.). [7.] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of twoconflicting witnesses: R. v. Selles (1997), (ON CA), 116 C.C.C. (3d) 435 (Ont. C.A.); R. v. Mina, [1994] O.J. No.1715 (C.A.) (affirmed (SCC), [1995] 2 S.C.R. 415).

In approaching the issue of credibility, the court is not only entitledto compare the evidence of the Accused to the complainant, but it has a positive duty to assess the evidence of the Accused in light of thewhole of the evidence, including the testimony of the complainant: R. v. Hull, (ON CA), [2006] O.J. No. 3177(C.A.); R. v. Boffo, [1997] O.J. No. 5156 (C.A.) at ¶ 12. [8.] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicatesubject, often defying precise and complete verbalization.

At bottom, belief of one witness and disbelief of another, in general or on aspecific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, andthe inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot besquandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions thateffuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: R. v.

Wadforth, supra at ¶66. [9.] An outright rejection of the Accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt ofthe truth of conflicting credible evidence is as much an explanation for the rejection of his evidence as is a rejection based on a problemidentified with the way he testified or the substance of his evidence: R. v. J.J.R.D., (ON CA), [2006] O.J. No. 4749(C.A.) at ¶ 53 (leave to appeal dismissed [2007] S.C.C.A. No. 69); R. v. R.E.M., supra, at ¶ 66; R. v. C.F., 2010 ONCA 424 ,[2010] O.J. No. 2499 (C.A.) at ¶ 9; R. v. J.A., 2010 ONCA 491 , [2010] O.J.

No. 2902 (C.A.) at ¶ 19 to 23; R. v. J.C., [2013]O.J. No. 3383 (C.A.) at ¶ 7; R. v. J.W., [2014] O.J. No. 1979 (C.A.); R. v. O.M., [2014] 3210 (C.A.). Trial judges are obliged to addresssignificant exculpatory evidence, the presence of which makes a finding of guilt beyond a reasonable doubt unthinkable, or at least highlyunlikely, absent a thorough explanation of why it does not: R. v. C.G., [2021] O.J.

No. 6434 (C.A.) at ¶ 57. [10.] Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered againstconflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established: R. v.Norman (1993), (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.) at pages 172-4; R. v. Stewart (1994), (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Oziel, [1997] O.J.

No. 1185 (C.A.) at ¶ 8 and 9. [11.] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, suchevidence need not directly implicate the Accused or confirm the complainant's evidence in every respect - the evidence should, however,be capable of restoring the court’s faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11 , 181 C.C.C.(3d) 1 (S.C.C.) at pages 5 and 6; R. v. Betker (1997), (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at page 429 (leave toappeal refused [1998] 1 S.C.R. vi, [1997] S.C.C.A. No. 461); R. v.

Michaud (1996), (SCC), 107 C.C.C. (3d) 193(S.C.C.).

[12.] Evidence of the surrounding circumstances, including the complainant's conduct, leading up to, during, and after an allegedsexual assault can be relevant to the determination of whether or not a complainant consented. Because consent, which is part of theactus reus of the offence, is subjective, the court must determine the complainant's state of mind at the time of the sexual activity.Although the complainant's testimony is typically the only direct evidence regarding her subjective state of mind, "credibility must stillbe assessed by the trial judge, or jury, in light of all of the evidence": see R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330,at para. 29. As the majority of the Supreme Court observed, in defending a sexual assault allegation, "[i]t is open to the accused to claimthat the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in hermind, did not want the sexual touching to take place": at para. 29. The trial judge will consider "whether the totality of the complainant'sconduct is consistent with her claim of non-consent": at para. 30.

Accordingly, it is appropriate and necessary for the trier of fact toconsider the circumstances surrounding the alleged sexual assault, which may include an analysis of the nature of the interactionsbetween the accused and the complainant leading up to and following the incident. Circumstantial evidence can assist the defence inraising a reasonable doubt on the issue of consent; it can also assist the Crown in proving non-consent: see Lisa Dufraimont, "Myth,Inference and Evidence in Sexual Assault Trials" (2019) 44:2 Queen's L.J. 316, at pp. 328-29: R. v. Steele, [2021] O.J.

No. 1519 (C.A)at ¶ 53-4. [13.] In considering the actus reus (criminal act) of sexual assault, this element is to be determined subjectively by reference to thecomplainant’s internal state of mind towards the touching at the time it occurred. The focus is on the complainant’s state of mind andnot on the perceptions of the accused. Accordingly, if the trier of facts finds beyond a reasonable doubt that the complainant did notconsent either by words or conduct, the actus reus has been proven.

With respect to the mens rea (criminal intent) of sexual assault, thiselement requires the prosecution to prove beyond a reasonable doubt that the accused either knew, or was wilfully blind or reckless, as toa lack of consent by the complainant. For this element, the focus shifts to the mental state of the accused: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28 , 2011 S.C.C. 28; R. v. Barton, 2019 SCC 33 , 2019 S.C.C.33; R. v.

G.F., 2021 SCC 20 , 2021 S.C.C. 20; s.273.1, Criminal Code. 3.0: LEGAL PRINCIPLES APPLIED 3.1: Positions of the Parties [14.] The defence submits that the Crown has failed to prove that E.L. did not consent for the following reasons. First, they submitthat the testimony of H.W. that E.L. stated by words and conduct that she consented to the sexual conduct ought to be believed or at leastraise a reasonable doubt.

Second, they submit that on the totality of the evidence, E.L. was an unreliable witness and that her evidencedoes not rise to the level of proof beyond a reasonable doubt that she did not consent. [15.] The Crown submits that the testimony of H.W. ought not be believed and does not raise a reasonable doubt regarding consentwhen stacked against all the other evidence including his post-incident texts to E.L.

To the contrary, the Crown submits that theutterances made by H.W. in his texts are confirmatory of his awareness that at the time of the incident E.L. was not consenting. 3.2: Analysis [16.] H.W. testified that prior to each act, he asked E.L. if she wanted to have sex and that she said aloud that she did. He testifiedfurther that once each act began, he asked E.L. if she wanted him to keep going and she said that she did.

He also said that E.L.consented not only verbally but also by her conduct of spooning, moving his hand to her vagina, being in control of intercourse by beingon top of him, and wrapping her legs around him and pulling him toward her during missionary intercourse. [17.] When considering all of the evidence at trial, I do not believe H.W. with respect to both consent and the description of theconduct, nor does his evidence raise a reasonable doubt for the following reasons. [18.] First, H.W. knew that his romantic relationship with E.L. ended months earlier.

I find as a fact that other than being students atthe same school and neighbours on the same street, there was little contact between H.W. and E.L. from December 2020 when theybroke up until a few days prior to this incident in March 2021. E.L.’s uncontradicted evidence is that when this incident happened, shevisited with H.W. at his house to have a conversation about restoring a relationship with each other as it was prior to dating.

I find as afact that H.W. was aware that since the prior December E.L. had little interest in him and that the reason she came to his house was totalk about restoring their relationship to what it was prior to dating. Therefore, I find that when E.L. came to his house H.W. was eitheraware, or wilfully blind, to the fact E.L. did not want any kind of intimate relationship with him at the time of the incident.

In suchcircumstances I do not believe H.W. when he said, in effect, that E.L. was willing to engage in sudden, escalating, sexual conduct withhim when in fact all she wanted to do was talk about being friends. [19.] Second, H.W.’s account of consensual sex is contradicted by the compelling evidence of E.L. who said that the digitalpenetration was painful and that the penile intercourse resulted in swelling, soreness, and bleeding. Her discomfort was so significantthat she needed an icepack to relieve the pain, which was confirmed by her mother. Her mother also saw blood in the toilet after E.L.

used it right after the event. Her mother also observed that E.L. was having trouble walking, which was unusual. The evidence ofphysical pain is consistent not with E.L. wanting sex, but with her evidence that she was not a willing participant. [20.] Third, his account of consensual sex is contradicted by the fact that E.L. was upset and out of sorts when she returned home. Her emotional distress was corroborated by her mother.

Her emotional suffering is inconsistent with consensual sex as claimed by H.W. [21.] Finally, I reject H.W.’s evidence that E.L. gave consent because of the texts exchanged with her shortly after the event. Atranscript of those texts was filed as an exhibit. [22.] H.W. initiated a dialogue with E.L. because one of her friends told him that he raped E.L. A significant part of the dialogue isthe initial exchange which is as follows: H.W.: Can you tell me something.

Because Taylee is yelling at me that I raped [you] without consent did you want to do it with mebecause E.L.: I wouldn’t call it rape but I never said yes and I never said no. I never did anything to stop you but I never said yes. I may haveshook[1] my head the day before but I never, never said yes [H]. H.W.: [E] all you had to say was no and now she’s calling me a rapist and I’m sorry if I made you feel uncomfortable. I thought youwanted to do it and I’m sorry if I caused you pain or anything, I am.

But could you stop her because she’s freaking out. [23.] Later in the text exchange H.W. repeated that he thought E.L. wanted to do it and that he wanted to make up with her. At notime did he remind her that when it happened she said not only yes, but to keep going. [24.] When asked in cross examination why he did not correct E.L. when she wrote that she never said yes, he testified that he wastrying to be non-confrontational with her because she was being emotional.

I reject this evidence regarding his initial response whereinhe said, “All you had to say was no” and “I thought you wanted to do it.” There was nothing emotional about E.L.’s text which elicitedthe response he provided. To the contrary, her text about not saying yes or no was calm and direct.

There was no emotionality for himto have to control or contain. [25.] When considering all the evidence, H.W.’s text, “all you had to say was no” can only be understood one way; that is, heacknowledged that E.L. had said nothing during the incident, thereby corroborating her testimony that she said nothing during any of thesexual activity. [26.] The dialogue was by text. Each party had an opportunity to consider his or her thoughts before sending them. When H.W.initiated the dialogue, he was aware that E.L. was accusing him of sexual impropriety, indeed that is why he reached out to her.

In thecircumstances of this case, it was reasonable to expect that when H.W. responded to her accusation that she did not say yes, he wouldhave challenged or denied her if what she said was untrue. H.W. did not write to E.L. that she had actually said yes and to keep going,but only stated, “All you had to say was no.” I find that when confronted by E.L., his failure to deny or correct her allegation was anadmission that she did not say yes and that he knew that at the time of the offence: R. v. Robinson, 2014 ONCA 63 , [2014] O.J.No. 272 (C.A.); R. v. Bridgman, [2017] O.J.

No. 6653 (C.A.). [27.] Having found that the evidence of H.W. was neither believable nor capable of raising a reasonable doubt, I explain why I believeE.L. [28.] I found E.L. to be an honest, fair, consistent, and trustworthy witness. I accept her evidence of the incident without hesitation. She was always internally consistent, and her evidence was materially confirmed or corroborated by other evidence presented at trial. [29.] The defence made submissions regarding the credibility and reliability of E.L.’s evidence.

For reasons I will explain, none ofthese submissions caused me to doubt the veracity of her evidence that she did not want to have sex with H.W. on the day in question andthat he knew it.

[ 30 .] H.W. submitted that E.L.’s text “I may have shook my head the day before, but I never, never said yes [H]” means that the two parties were together the day before, which is what H.W. said happened. I disagree with this submission. In her statement to the police, which was adopted by her and made a trial exhibit, in her evidence in chief and in cross examination, E.L. was unshaken that she did not go to H.W.’s house the day before.

She was also firm that what she meant in the text was an abstract statement that even if she hypothetically had agreed to have sex the day before it did not mean she agreed to have sex on the day of the incident. I am satisfied on a review of all the evidence that E.L. was speaking metaphorically, not literally. Even if she had gone to the Defendant’s house the day before, I find that her lack of memory about it does not negatively impact her overall trustworthiness. First and foremost, it is the day in question that made the deepest impression on her experience and memory.

By the time of this trial, I am not surprised that if she forgot about the day before it was of little importance to her at the time or now. Second, whether she was there the day before or not, she maintained that whatever may have been consensual in the past was irrelevant to the incident at hand. [ 31 .] E.L. testified and told the police that the incident in question was blurry in her mind. Nevertheless, she provided the police with an enormous amount of detail which she recalled at trial in a consistent and compelling manner.

Furthermore, her memory that there was kissing, digital penetration, and intercourse on the couch in H.W.’s living room over the lunch hour is entirely admitted by the Defendant. Peripheral details of a traumatic event can be difficult to recall and accurately describe later: R. v. G.M.C. , 2022 ONCA 2 , at para. 38 . I am not surprised when she said the events were blurry, but at its core, the evidence of E.L. as to the central issue was always crystal clear. [ 32 .] H.W. also submitted that E.L. misled her mother which makes E.L. dishonest and unreliable. I do not agree with this submission.

E.L. was clear that she was not menstruating at the time of the incident as her period was a couple of weeks earlier at the beginning of the month. She was in the best position to know this. However, I accept her mother’s evidence that when E.L. came home from the Defendant’s house, E.L. asked for a sanitary pad and told her mother that she thought she was getting her period. When E.L. came home her demeanour was such that her mother asked if anything happened with H.W., to which E.L. lied and said, “Ew, gross.

We’re just friends.” Later, when E.L.’s mother asked point blank if H.W. had sexually assaulted her, E.L. did not answer but redirected the conversation. Still later, when E.L.’s mother asked E.L. for details, her daughter simply showed her the text exchange between the parties. [ 33 .] I find that the relationship between E.L. and her mother was not one in which E.L. felt she could or wanted to tell her mother the truth. I am therefore not troubled by E.L. telling her mother she might have been getting her period in order to provide a reason for acquiring a pad.

As a result, I assign no negative weight to E.L.’s reliability or credibility based on what she did, or did not, tell her mother about what happened with the Defendant. [ 34 .] The hospital examination report asked at Step 7, page 3 “at the time of the assault was the patient menstruating or bleeding?” to which E.L. responded, “No.” The report also states at page 5 that “[the patient] denies injuries at present.

Stated some tenderness and redness to vulva immediately after assault but totally fine now.” The nurse administering the examination did not testify. [ 35 .] With respect to the question on page 3 of the medical report, it clearly asks about bleeding or menstruation during, and not after, the assault. The answer recorded is consistent with E.L.’s evidence that she was not menstruating at the time of the incident. As for the injury report, it does not state there was any bleeding. E.L. was “pretty sure” she told the nurse that she did suffer bleeding.

In the absence of any evidence from the nurse, there is no reason to reject E.L.’s evidence that she probably told the nurse about the bleeding. I accept as a fact that E.L. experienced vaginal bleeding in addition to redness and pain as a result of the conduct of H.W. [ 36 .] It was suggested that E.L.’s reliability was undermined by discrepancies in the timing of events on the day in question. E.L. said she went over to the defendant’s house around noon and returned home around 12:45 p.m. Her mother said E.L. went over around 11:45 and came back at around 1:00 p.m. Mrs.

L. recalled her daughter texting around 12:15 asking if she could stay longer. E.L. does not remember sending the text, but I am satisfied that she did. The defendant submits that her text to her mother is circumstantial evidence of consent. I reject this submission. The discrepancy between mother and daughter over timing has no significance: both agree it happened over the lunch hour. While I agree the text asking to stay longer can only mean E.L. wanted to be at the defendant’s house, I find that she sent the text prior to the sexual activity for several reasons.

First, the evidence on the chronology of the sexual activity is that it took about half an hour or so. The timing of her text accords with the timing of the assault and her return home between 12:45 and 1:00 p.m. Second, because I have found that E.L. did not consent to the activity and was physically and emotionally harmed by it, there was no reason for her to send the text while H.W. engaged her in sexual activity. [ 37 .] The defence submitted that E.L.’s account was also unreliable because of her admission that she was not confined by H.W. and was able to leave at just about any point during the incident.

I accept her evidence that she did not leave because she was scared due to the circumstances which I find to be the sudden, unwanted, and controlling sexual behaviour of H.W.

[ 38 .] Another submission made by the Defendant is that E.L. was unreliable due to her waffling about whether she was raped by H.W. In a text to the Defendant, E.L. stated, “I wouldn’t call it rape but I never said yes and I never said no. I never did anything to stop you but I never said yes.” She told her friend, Mackenzie Janes that she thought she had been raped meaning that she had sex with H.W., but did not want to but didn’t feel she could say no. At trial, E.L. seemed unsure what rape meant at the time.

Assessing the whole of the evidence I am not concerned about E.L.’s statements regarding whether or not she was raped for two reasons. First, she never waivered from her evidence that at no time did she want sex but at the same time she also never said nor did anything to stop him. There is no doubt that in a situation where she did not agree to sexual intercourse, she was raped by the Defendant even if she was silent. Second, her knowledge and belief of what happened with H.W. demonstrates that she did not cooperate with him, but instead gave into him.

Acquiescence, compliance, or lack of resistance signal only a failure to object but they do not constitute consent. [ 39 .] I believe the complainant that she did not consent by word or by conduct. I believe that E.L. was passive to the sexual predations of the Defendant and that his conduct caused both physical and emotional trauma to her. [ 40 .] Having considered the entirety of the evidence, the submissions of counsel, and the applicable legal principles, I am satisfied beyond any reasonable doubt that E.L. did not consent to engaging in sexual conduct with H.W. on the day in question.

Furthermore, I find that the prosecution has proven beyond a reasonable doubt that H.W. either knew that E.L. did not consent, or that he was wilfully blind or reckless as to her lack of consent. [ 41 .] For these brief reasons, I find H.W. guilty as charged. Richard H.K. Schwarzl, Justice of the Ontario Court of Justice