R. v. Hebert, 2017 ONSC 2391

CITATION : R. v. Hebert, 2017 ONSC 2391 COURT FILE NO.: 851/16 DATE: 2017/04/19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) ) ) ) ) HER MAJESTY THE QUEEN Stephanie Baker , for the Crown ) - and - ) ) ) GHYSLAIN JOSEPH ALAIN HEBERT ) ) ) ) Michael McNamara and A. Caverson , for the Defendant ) Defendant ) ) ) ) ) HEARD: April 3 to 5, 2017 PUBLICATION RESTRICTION NOTICE An order restricting publication of any information that could identify the alleged complainant in any way has been made under s. 486.4 of the Criminal Code . REASONS FOR DECISION ellies j.

OVERVIEW [ 1 ] The accused, Ghyslain Hebert, is charged with a single count of sexual assault against the complainant, R. B. The charge relates to an event that occurred in the early morning hours of April 10, 2016 when the two of them had sexual intercourse. The accused, who was 33 or 34 at the time, says it was consensual. The complainant, who was 62 when it happened, says it was not.

BACKGROUND FACTS [ 2 ] There is little dispute about the facts leading up to what happened between the accused and the complainant. [ 3 ] The weeks leading up to the month of March, 2016 had been very difficult ones for the complainant. On March 1, she lost her husband of nearly 45 years. He had been ill for some time and she had been caring for him throughout. About a week before that,

the complaint lost her brother, for whom she had also been caring. [ 4 ] About a month after the death of the complainant’s husband, her two youngest children, F. and L., decided to help their mother out of her sad state. They purchased tickets to an Abba Tribute fundraiser being held in St. Charles, a little community not far from Noelville. The event straddled the birthdays of both children, one of which was on the 9th of April and the other of which was on the 10th. Although she resisted at first, the complainant eventually agreed to attend.

As she was not in the mood to do much drinking, it was agreed that she would be the designated driver. The group also planned to go to F.’s home after the concert, which was only a few minutes away by car from the community center at which the event was being held. [ 5 ] The complainant and her children arrived at the community centre about 15 minutes before the concert started at 7:00 p.m. With them was J., F.’s boyfriend. He lived in Timmins at the time, but he had come down for the weekend. [ 6 ] The accounts of what occurred at the concert vary somewhat, but not in material ways.

When the group arrived, they found themselves a table. As the complainant’s children knew many, if not most, of the people there, they spent much of the night mingling. The complainant, however, spent most of the night seated at the table. So, too, did J. [ 7 ] The preponderance of the evidence is that drinks were sold using tickets. The complainant testified that she consumed no more than three drinks. This evidence is consistent with that of all of the other Crown witnesses, including J., who spent most of the night with the complainant at the table. He testified that he guessed that she had about two drinks.

Every other witness who attended the concert that night had considerably more to drink more than that. [ 8 ] The accused was also at the concert. He testified that he arrived there about 9:20 or 9:30 p.m. He took his own vehicle and joined a cousin there. He said that five tickets were selling for $20, so he bought five for himself and one for his cousin. [ 9 ] At the time of the concert, L. was very good friends with the accused’s brother. L. knew the accused quite well, too, as they had gone to school together. F. also knew the accused, but not as well.

J., F. and L. testified that they invited the accused to join them at F.’s house that night because they were concerned that the accused would otherwise try to drive home. All three witnesses testified that the accused was exhibiting signs of intoxication. L. testified that the accused was unusually talkative. F. testified that, although she did not know him that well, the accused kissed her on the lips around midnight and wished her happy birthday. J. testified that the accused was slurring his speech.

While it is true that J. had never met the accused before that night, J. had training and experience working as a bartender. I accept the evidence of J., F. and L. that the accused was showing signs of intoxication by the time the band stopped playing on the evening of April 9. [ 10 ] After they left the community centre, the complainant drove everyone to F.’s house in her car. At the house, everyone gathered around the dining room table, a photo of which was introduced as an exhibit, on consent.

All of the witnesses who were asked about it testified that the accused sat next to the complainant, who was on the accused’s left. Next to the complainant was L., next to L. sat J., and next to J. sat F. All five individuals helped themselves to a drink. Everyone drank beer, except for the complainant. She drank a “Vex” vodka cooler. I am satisfied based on the evidence of all of the Crown’s witnesses that the complainant had only one drink at F.’s house that night.

Once again, however, the other witnesses had more. [ 11 ] As one might expect, the disparity in the witness’s evidence about events increases with the amount of alcohol they consumed that night. Although the complainant was uncertain about it, all of the other witnesses testified that L. got out his guitar after they got home and began playing while they all sang. There is general agreement about a number of other events that occurred at F.’s house, as well. [ 12 ] First, while they were sitting around the table, and not long after they got there, the accused began rubbing the complainant’s back.

F., J., and even the accused, were clear that the accused rubbed the complainant’s back while the two of them were seated next to one another. J. testified that the accused lifted the bottom of the complainant’s shirt to do so. However, I am not persuaded that this occurred. J. was the only witness to say that this happened, including the complainant herself. Indeed, the complainant mentioned the fact that the accused rubbed her back only for the first time in cross-examination and was less certain about it than the other witnesses.

I would have expected her to remember quite readily that the accused was rubbing her back if he was lifting her shirt up to do it. [ 13 ] The complainant was much more certain, however, when it came to the issue of “hugs”. She testified, as did the accused, that he told her he wanted hugs from her. While the other witnesses did not say that they heard the accused say this, I believe that this is explained by the fact that L. was playing the guitar while other individuals sang and tapped on the table, according to J.’s evidence.

Both F. and J. did testify that they heard the complainant tell the accused that she was old enough to be his grandmother. [ 14 ] I will have more to say about hugs later in these reasons. [ 15 ] The second event about which there is general agreement amongst the witnesses is that, at one point, the accused grabbed F. as she was standing up, perhaps dancing, and sat her on his lap. J. testified that the accused also said at one point that J. was the one who was going to be sleeping on the couch that night, while the accused slept with F.

Both F. and J. testified that F. said something to J. about coming to her aid, that J. got up after the accused grabbed F., but that she then told J. that she could handle it, or words to that effect. As a result, J. sat back down. F. did manage to get off the accused’s lap and the get-together continued. [ 16 ] By all accounts, the group got to F.’s house at about 1:00 a.m. and the complainant went to bed at about 2:00 a.m., after finishing her drink. She took the bedroom in the basement, which had been made up for her.

The plan was for L. and the accused to sleep on couches, and for F. and J. to sleep in the bedroom on the main floor. [ 17 ] The next event about which there is general agreement is that, at some point in the evening, most likely after the complainant went to bed and while the rest of the group were still singing to the guitar, the accused fell asleep with his head on the table. F. testified that it was necessary to shake the accused very hard in order to wake him up. J. testified that the accused woke up when they were banging on the table. How the accused was awoken is not really important.

What matters is that the accused fell asleep while all of the guitar playing, singing and talking was going on. In my view, this is evidence from which to infer that the accused was quite intoxicated

that night. While he testified that he did not remember falling asleep, he admitted that it was possible that he did. [ 18 ] The final event about which there is no issue is that, after all of the others went to bed, the accused went downstairs to the bedroom in which the complainant was sleeping and had sexual intercourse with her. The issue is whether it was with the complainant’s consent.

The Complainant’s Evidence [ 19 ] In recounting the evidence about what happened downstairs at F.’s house, it is important to bear in mind that, while the trial was conducted in English, the witnesses were mostly speaking French on the night in question. [ 20 ] The complainant testified that, while she was at the kitchen table, the accused kept asking her for hugs. In cross-examination, the complainant explained that, in her statement to the police, she said that the accused asked her to “cuddle” and not to hug, because the word in French (“caresse”) means the same thing to her.

She said that the accused kept saying that he “needed a hug”. She testified that he was very persistent. She described his persistence as “nagging”. [ 21 ] The complainant testified that she jokingly said to the accused, “I know it’s not just a hug you want”. [ 22 ] The complainant testified that she could not remember if the accused asked her if he could come to her room later to get a hug.

She said that she really couldn’t remember, but that if he had asked, she would have assumed he was joking, the way she assumed he was joking when he made the other comments he did that night. [ 23 ] The complainant testified that, when she got down to the bedroom, she got into her pyjamas and went to bed. She was dressed in matching peach-colored pyjama bottoms and a t-shirt like pyjama top. The top had decorative buttons sewn on the front. The complainant put in her earplugs and went to sleep.

She testified that she left the bedroom door open, as was her custom. [ 24 ] Later, the complainant was awoken by something. She could see the silhouette of a man in the doorway, whom she knew immediately must be the accused. He was undressing. She thought “Oh my God! He’s coming to act on his word.” She said to him, “You don’t need to undress if you want to cuddle.” Undeterred, the accused took off all of his clothes and got into bed. He told her, “You’ll like this.” She responded, “I’m old enough to be your mother.” To that, the accused responded, “Shut up. Don’t talk.” He began to fondle her chest.

He ripped her top using both of his hands. He told her again to shut up and not to speak. She was afraid that he would use more force if she did not cooperate. She told him to wait and she removed her torn top. She lifted her buttocks as he removed her pants and he proceeded to penetrate her. [ 25 ] The complainant testified that the accused would lose his erection, fondle himself until he was again erect, and then penetrate her again. At one point, she told him that it hurt, but he told her to shut up. At another point, when he moved into a “69” position, she performed oral sex on him.

Although it is not clear whether it was at the same time, she allowed him to perform oral sex on her. At yet another point, the accused told her to turn over. Believing he wanted her to turn onto her stomach, she complied. Thinking he wanted anal sex, she said to him “You’re not going to stick it there.” He responded, “No.” They resumed vaginal intercourse. [ 26 ] In total, the accused penetrated the complainant eight to ten times, never succeeding in reaching orgasm.

The encounter ended when the accused got up, got dressed and left. [ 27 ] The complainant testified that she did not want to have sex with the accused. She felt ashamed afterwards, not because she had consented; she had not. She felt ashamed because she had “frozen” and done nothing to prevent it. She lay in bed awake for the rest of the night, waiting to hear someone moving upstairs. [ 28 ] In the morning, the complainant returned to the kitchen where, according to her, she found F., J. and L. According to the complainant, and to F. and J., she told them that she had had a “visitor” during the night.

Everyone knew to whom she was referring. She told them he wanted something from her and that he had torn her pyjama top. The complainant testified that when she saw the angry reaction from her children and J., she decided not to tell them the rest. She was afraid that L. and J. might hurt the accused. She also said that she did not want the accused to get into trouble.

In cross-examination, she added that she was concerned that, if she told the whole story, she would end up exactly where she ended up, namely, in the witness stand. [ 29 ] Instead, the complaint told F., J. and L. that the accused had just left after tearing her top. F. testified that her mom seemed nervous at the time. J. testified that he thought she looked normal. He also did not remember her saying anything about a ripped top.

However, he testified that he was cleaning up the kitchen at the time, trying to give the complainant privacy in which to speak to her children. [ 30 ] L. testified that he was not present in the kitchen at the time and that he only heard about what happened from his mother later at her house, where he was living at the time. She told him the same thing as she told the other young people. [ 31 ] Perhaps this is the appropriate point at which to say that I found L. to be an unreliable witness in some respects.

For example, when asked about his parents’ relationship, he testified that they had a very strong relationship and had been together for 55 years. However, the evidence of the complainant and of F. was that the complainant and her husband had been together for nearly 45, not 55, years. [ 32 ] Another example occurred during cross-examination, when L. was confronted with a statement he made to the police. In that statement. he said that the accused must have consumed at least a 60 oz. bottle of rye on the evening of April 9th.

However, he admitted that he did not see what the accused had ordered while at the concert and that he had given the figure of 60 oz. because it was “an even number”. [ 33 ] As a last example, I will refer to one more area of the evidence. Despite the fact that all of the other witnesses present that evening testified that, at one point, F. ended up on the accused’s lap at the kitchen table, L. testified that any flirtation on the accused’s

part with F. took place at the concert. [ 34 ] L.’s reliability as a witness may be explained by the amount of alcohol he consumed that night. At the time of trial he was 5’ 7” and weighed only 130 lbs. Despite his stature, he testified that he probably had eight to ten drinks that night. [ 35 ] Whatever the cause, where L.’s evidence contradicts that of the other Crown witnesses on any point, I prefer the evidence of the other Crown witnesses. [ 36 ] I return now to the complainant’s evidence. [ 37 ] When she got home that night, the complainant threw out the ripped pyjama top.

She testified that she had no intention of ever telling anyone what had happened. [ 38 ] The matter probably would have ended there, if it were not for a “girl’s night” the complainant attended about one and one- half months later. The women present were talking about how women should have more of a voice and speak out for themselves when necessary. Emboldened, the complainant told them what she had told her children. Her sister-in-law told her that she should say something to the authorities. The complainant was persuaded that she should.

As she put it, she would have said the same thing to someone else in her position and thought that she should to do likewise. [ 39 ] And so, with her sister-in-law’s help, an interview with the police was arranged at which the complainant provided a video and audio recorded statement. However, I conclude from what followed that she told them more about what happened than she had told anyone else before. [ 40 ] At the request of the police, the complainant provided them with her pyjama bottoms and attended at the hospital to undergo an examination.

On consent, the results of DNA tests performed on the pyjamas (which had not been washed since the incident) and of the physical examination of the complainant were provided verbally to the court. Neither examination revealed any forensic evidence of contact between the accused and the complainant. [ 41 ] The accused, however, does not deny that such contact occurred. The Accused’s Evidence [ 42 ] The accused testified that, when he was rubbing the complainant’s back earlier in the evening, she had laughed and giggled. He said she told him that he was doing a good job.

He testified that he told her “jokingly”, that he would “cuddle her later on”. [ 43 ] The accused said that, when he went downstairs later, he knocked on the complainant’s open bedroom door. He testified that the complainant was lying down at first. She said, “Oh, you’re here.” The accused responded, “Yes, I’m here to cuddle.” The accused testified that the complainant said, “Oh, okay.” [ 44 ] The accused testified that he dropped his coat and hat on the floor and went to the bed. The complainant moved over.

She said to him, “I’m old enough to be your mother.” He responded, “That doesn’t bother me, I’m okay with that.” He began to massage her arms. According to the accused, he asked the complainant if he could give her a kiss and she responded in the affirmative. All of this, he said, was done in a joking fashion, with the two of them giggling. [ 45 ] The accused began to massage the complainant’s chest and to kiss her slowly. He asked if that was okay and she said, “Yes.” She was kissing him back, he said. [ 46 ] This lasted for five to ten minutes, with the two of them lying on their sides, facing each other.

They could hear noise coming from upstairs that the accused believed was F. and J. having sex. The accused testified that he and the complainant jokingly said to one another that they were not going to get that loud. [ 47 ] The accused was still fully dressed at this point and the complainant still had on her pyjamas. The accused testified that the complainant was wearing blue pyjamas. The two of them were rubbing each other’s chests. The complainant told the accused that he had a nice chest. According to the accused, they then proceeded to take their clothes off, except for their underwear.

According to him, nothing was torn or ripped in this process. [ 48 ] The accused continued to kiss the complainant’s body. At one point, she told him to “take it easy, it’s been awhile since I’ve done that.” They both took their underwear off. The accused continued to kiss the complainant. He asked her, “Can we have sex?” She laughed and giggled about it. They continued to kiss. The complainant went onto her back and the accused got on top of her. They began having sexual intercourse. [ 49 ] According to the accused, at one point, he fell off the bed and the complainant “slanted off”. They laughed at this.

The accused then asked the complainant if she could turn around and she went onto her stomach. He told her that he meant “on her side”. She turned that way and they began having sex from that position. They could still hear noise coming from upstairs and they would stop at intervals and laugh about it. [ 50 ] The sex stopped, according to the accused, when the complainant said she had to go to the washroom. After she went, he went. When the accused returned to the bedroom, the complainant was getting dressed. The accused got into his t-shirt and underwear and the two of them went to bed.

According to the accused, he kissed the complainant goodnight and then fell asleep. According to him, the entire encounter had lasted about one-half hour. It was about 3:00 a.m. when it ended. [ 51 ] The accused testified that he slept until he was awoken by the complainant snoring at around 7:00 a.m. He then got up, got dressed, and left the complainant sleeping. He saw no one on the way out.

ISSUES [52] The central issue in this case is whether the Crown has proven beyond a reasonable doubt that the complainant did not consentto what occurred in the early morning hours of April 10, 2016. [53] On behalf on the accused, counsel also raises the alternative issue of honest, but mistaken, belief in consent. ANALYSIS Actus Reus [54] Like every criminal offence, the crime of sexual assault has both physical and mental components. As the Supreme Court ofCanada set out in R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at para. 24, the physical component consists of threeelements, namely: (1) touching; (2) of a sexual nature; and (3) the absence of consent. [55] The first and second of these elements are objective and are not in issue in this case. The third element is different. It issubjective. What matters is the complainant’s state of mind at the time the sexual contact occurred: Ewanchuk, at para. 26.

If a courtaccepts a complainant’s evidence that she did not consent, then this element is proven: Ewanchuk, at para. 28. [56] Although not obliged to do so, the accused has chosen to testify in this case. Where a judge accepts the evidence of anaccused, and where it provides a complete defence, then the accused must be acquitted. Where a judge does not believe the accused’sevidence, he must be acquitted where the accused’s evidence raises a reasonable doubt about any of the elements of the offence withwhich he is charged.

Even if the accused’s evidence does not, by itself, raise a reasonable doubt, he is still entitled to be acquitted wherea judge has a reasonable doubt based on all of the other evidence: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. [57] The accused and the complainant have given different versions of what occurred in the bedroom downstairs at F.’s house.

Forthis reason, evidence about the events that took place both before and after the downstairs encounter – evidence which is generallyagreed upon – provides a helpful matrix with which to examine the evidence of each of them about what happened while they werealone. In my view, that evidence supports the evidence of the complainant. [58] The uncontroverted evidence, even that of the accused, shows that he suffered what could most favourably be called“boundary issues” in the hours leading up to what happened in the bedroom.

I accept the evidence of F. that the accused kissed her onthe lips at the concert, and not on the cheek as the accused testified. A kiss on the lips is much more consistent with the accused’sbehaviour later that night, at F.’s house, which is also generally agreed upon. [59] Notwithstanding that he did not know F. that well, the accused grabbed her and sat her on his lap. He did this in the presenceof F.’s boyfriend. I accept the evidence of F. and J. that the accused also said that J. was going to be the one sleeping on the couch thatnight and that the accused was going to be sleeping with F.

This behaviour demonstrates that the accused was taking liberties with thewomen present that night even in the presence of others whom he might expect would not be pleased by his behaviour and might takesteps to address it. [60] Despite the fact that he knew F.’s mother even less well than he knew F., the accused began rubbing her back shortly after thegroup arrived at F.’s. By his own admission, there was no behaviour on the part of the complainant and there were no circumstanceswhich could have led the accused to reasonably believe that the complainant wanted such physical contact with him.

In fact, thecircumstances were to the opposite effect. The complainant was significantly older than the accused. She had just lost her husband ofmany years, to the knowledge of the accused. She had not spoken to the accused nor behaved towards him in any way that could beinterpreted as showing interest in physical contact with him, let alone intimate physical contact. [61] The evidence of events that took place upstairs at F.’s house show that the accused either ignored or failed to pay attention toclear indications that the complainant did not want to have physical contact with him.

I accept the evidence of F., L. and J. that thecomplainant appeared to be uncomfortable with the attention she was getting from the accused and with the backrubs he was giving her. I also accept the evidence of the witnesses who testified that the complainant kept “shrugging” the accused off and told him in thekitchen that she was old enough to be his grandmother. I accept, as well, L.’s evidence that he told the accused when he was rubbing thecomplainant’s back, “Hey, man, that’s weird”. [62] None of these cues deterred the accused.

I accept the evidence that he would stop rubbing the complaint’s back for a shortwhile and then resume. I reject the evidence of the accused that the complainant told him that he was “doing a good job”. None of thewitnesses present that evening heard her say this. I accept the evidence of the complainant that she did not like backrubs in general and Ifind that, in light of her evidence, it is unlikely she would say this to the accused. [63] I also reject the accused’s evidence that he told the complainant that he would cuddle with her later on.

Again, no one elsetestified that they heard the accused say this to the complainant. The complainant testified in-chief, when asked, that the accused“might” have asked her if he could come to her room later to hug, but she did not remember him doing so and thought that she might beconfusing what he actually said with what she was concerned he might eventually do. I believe that this is what she did. [64] Even if I were to accept that the accused said such a thing, by his own admission, he said it jokingly and the complainant’sreaction was to laugh.

This was not an indication that she was consenting to sexual intercourse.

[65] The fact that the complainant left the rest of the group about an hour after they got to F.’s house is consistent with her notwanting any physical contact with the accused. The fact that the accused remained in the kitchen for approximately another hour isinconsistent with any belief on his part that the complainant was expecting him to join her downstairs for further intimate physicalcontact. [66] Evidence of what happened after the events that took place downstairs ended also supports the complainant’s evidence. Theaccused simply left the home. He says that it was because she was snoring.

However, it is clear from the evidence that there was asecond couch available to the accused, on which F. had placed a pillow and blankets. Given that he had gone to bed after 3:00 a.m. thatnight, I find it more likely that, if his version of events was true, the accused would simply have retired to the couch in order to get a fewmore hours of sleep. He could then have gotten a ride to the community center in order to retrieve his vehicle. Instead, he appears tohave left before anyone awoke and to have walked whatever the distance was back to the community center to drive his vehicle home.

All this after having consumed so much alcohol that he passed out at one point during the evening. [67] I turn now to the accused’s testimony about what happened in the bedroom. In my view, this evidence is at odds with whatlogic and human experience dictate should have happened. [68] First, on the accused’s evidence, there is no real explanation as to why neither party reached climax while they engaged inintercourse.

That seems at odds with what one would expect if the two of them were such willing partners to such a novel encounter. [69] As well, the way the accused says their sexual encounter ended is inconsistent with all of his evidence about the degree towhich he and the complainant communicated and her willingness to have sexual intercourse with him.

If what he said was true, it isimplausible that the complainant would simply begin to get dressed while the accused was in the bathroom and that there would be nofurther discussion between the two of them about the possibility of resuming their sexual activity, even if just to say that one or both ofthem were tired and that they wanted to go to sleep. [70] Counsel for the accused asks me to consider the complainant’s admission that she snores and asks rhetorically how theaccused could have known that the complainant snored if his version of events is not true.

The answer seems easy to me, and completelyconsistent with the complainant’s evidence. The accused heard the complainant snore when he first came downstairs. Both he and thecomplainant testified that the bedroom door was open. [71] Lastly, I accept the evidence of F. and J., who both said that they did not have sex that night.

This contradicts the evidence ofthe accused that he and the complainant could hear what sounded like F. and J. having sex and that they would stop on occasion to listenand to laugh about it. [72] In light of the evidence to which I have referred, I do not accept the evidence of the accused as to what occurred in thebedroom that night. Nor am I left with a reasonable doubt by that evidence. I turn now to the rest of the evidence. [73] It is true that some of the complainant’s conduct while in the bedroom is consistent with consent, or at least ambiguous aboutit.

According to the complainant’s evidence, she took off her own top, raised her buttocks to assist the accused to take off her bottoms,performed oral sex on the accused, and spread her own legs. However, I accept the complainant’s evidence that she did these things outof fear. The accused was considerably younger than she was. He was also considerably larger, at six feet tall and over 200 pounds.

Iaccept the complainant’s evidence that the accused tore her top and her evidence that she had heard through his brother, who often cameto her house, that the accused was “messed up”, that he wanted to fight, and that he was out of control. Her evidence about what theaccused’s brother told her is supported by the accused’s admission that he has been involved with the police and has pleaded guilty toassault. [74] I am satisfied beyond a reasonable doubt that the complainant did not consent to engaging in sexual activity with the accused. The Crown has proven ll of the physical elements of the offence.

Mens Rea [75] The mental component of the crime of sexual assault consists of two elements: (1) the intention to touch; and (2) knowing of, or being reckless or willfully blind with respect to, a lack of consent on the part of the person touched: Ewanchuk, atpara. 42. [76] The defence submits that, if I find that the physical component of the offence has been made out, I should be left with areasonable doubt about the mental element of the crime with which the accused is charged given the conduct of the complainant towhich I have just referred.

On behalf of the accused, counsel submits that the evidence is consistent with the accused having an honest,but mistaken, belief that the complainant was consenting. [77] The defence of honest but mistaken belief in consent is available where three conditions are met, namely, where there is: (1) evidence that the accused believed the complainant was consenting; (2) evidence that the complainant in fact refused to consent, did not consent, or was incapable of consenting; and (3) evidence of a state of ambiguity which explains how a lack of consent could have been honestly understood by the defendant asconsent, assuming he was not willfully blind or reckless to whether the complainant was consenting, that is, assuming that he paidappropriate attention to the need for consent and whether she was consenting or not.

See R. v. Esau (SCC), [1997], 2 S.C.R. 777, at para. 85 (per McLachlin J. (as she then was), dissenting as to the

availability of the defence, but not as to its elements). [ 78 ] Having accepted the evidence of the complainant about what took place in the bedroom that night, the defence of honest but mistaken belief in consent is not available to the accused in this case. The accused could not have believed that the complainant was consenting when he tore her top and told her to shut up, as I have found he did. [ 79 ] I am satisfied, therefore, that the Crown has also proven the mental elements of the offence beyond a reasonable doubt. CONCLUSION [ 80 ] For these reasons, a finding of guilty will be made. Ellies J.

Released: April 19, 2017 CITATION : R. v. Hebert, 2017 ONSC 2391 COURT FILE NO.: 851/16 DATE: 2017/04/19 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GHYSLAIN JOSEPH ALAIN HEBERT REASONS FOR JUDGMENT Ellies J. Released: April 19, 2017