R v Bear-Knight, 2021 SKQB 308 (CanLII) (original) (raw)
QUEEN’S BENCH FOR SASKATCHEWAN
Citation: 2021 SKQB 308
Date: 2021 11 26
Docket: CRM 66 of 2021
Judicial Centre: Saskatoon
BETWEEN:
HER MAJESTY THE QUEEN
- and -
RIVER BEAR-KNIGHT
Counsel:
Sheryl J. Fillo for the Crown
Meagan B. Ward for the accused
___________________________________________________________________________
JUDGMENT ELSON J.
November 26, 2021
___________________________________________________________________________
Introduction
[1] The accused, River Bear-Knight, faces two counts in the Indictment before the Court, both pertaining to the same complainant. The first count alleges that the accused sexually assaulted the complainant on November 9, 2019, contrary to s. 271 of the Criminal Code, RSC 1985, c C-46. The second count alleges that he committed an assault on the complainant by choking, suffocating or strangling the complainant, contrary to s. 267(c) of the Criminal Code.
[2] The central issue with respect to the first count relates to the question of consent to the sexual activity in question. Although the accused, who testified in his own defence, admits to sexual activity with the complainant, he posits that the complainant consented to it. As for the second count, the accused flatly denies any efforts or attempts to choke, suffocate or strangle the complainant.
Background
Assessing Witness Testimony – Governing Principles
[3] In cases where the alleged crime involves a private interaction between two people, it is not uncommon for witnesses to give conflicting testimony as to what occurred in the interaction. At this trial, the Court heard testimony from the complainant and the accused – both giving very different versions of the relevant events. There are certain principles of law, related to the presumption of innocence and the Crown’s obligation to its case beyond a reasonable doubt, which must, as a matter of law, factor in the Court’s analysis of this conflicting testimony. I will discuss those principles later in this judgment.
[4] Leaving aside that discussion for the moment, it is important that the Court be mindful of certain governing principles that apply to the assessment of testimony, generally. A helpful authority in this regard is the judgment in R v M.(A.), 2014 ONCA 769, 123 OR (3d) 536 [_M.(A.)_], where the Ontario Court of Appeal ordered a new trial after finding the trial judge had made reversible error in his assessment of testimony. At paras. 8-20 of the judgment, jointly penned by all three justices of the panel, the Court identified several considerations which informed their analysis. Certain of these considerations specifically pertained to the assessment of testimony given by child witnesses, which is obviously not a concern in this case. Other considerations, however, are more applicable to testimony, generally. I think it helpful to review those considerations here.
[5] The first applicable consideration is that every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate. In R v W. (R.), 1992 CanLII 56 (SCC), [1992] 2 SCR 122 at p 134,the Supreme Court of Canada articulated this expectation almost 30 years ago – one that has since stood the test of time.
[6] The second consideration focuses on the external consistency of a witness’s testimony. Courts have frequently said that one of the most valuable means of assessing the credibility and/or reliability of testimony is to examine the consistency between what a witness testified to at trial and what that same witness said on other occasions, whether under oath or not. One authority cited in _M.(A.)_which emphasizes this point is R v G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 CCC (3d) 347 at p 354, (Ont CA) [_G.(M.)_], leave to appeal to SCC refused, (1995), [1994] SCCA 390 (QL) (SCC). Inconsistencies may emerge in a witness’s testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times. They may also arise somewhat more indirectly by the omission of certain evidence at one time while referencing that evidence on another occasion.
[7] The Court in M.(A.) quite properly observed that inconsistencies vary in their nature, importance and impact. In making this observation, the Court again cited its earlier judgment in G.(M.), where Galligan J.A. wrote the following at p 354:
Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.
The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented.
In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’s evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.
[8] The Court in M.(A.) also gave instructions to trial judges as to how they should address inconsistencies in their assessment of the evidence and the articulation of the reasons. In this respect, the Court stated the trial judges need not review and resolve every inconsistency in a witness’s evidence. They also do not have to respond to every argument that counsel may make in respect of an inconsistency. Having said this, the Court was clear in its direction that trial judges should address and explain how they have resolved major inconsistencies in the evidence of material witnesses.
[9] Two other considerations should also be noted in the consideration of witness testimony. They are the concepts of credibility and reliability. Where questions of fact turn on the assessment of conflicting testimony of witnesses, the credibility or the reliability of testimony takes on considerable importance.
[10] Although there can be overlaps between these two concepts, it must be understood that credibility and reliability are substantively distinct. Credibility pertains to the honesty and veracity of a witness’s testimony. Reliability, on the other hand, pertains to the accuracy of testimony. This distinction was succinctly described by Watt J.A. in R v H.C., 2009 ONCA 56 at para 41, 241 CCC (3d) 45, where he wrote the following:
41 Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
Evidence at Trial
[11] Before any of the witnesses testified in this trial, the Court received in evidence an Agreed Statement of Facts. In it, the Crown and defence stipulated to the following:
a. the complainant attended at Royal University Hospital on November 9, 2019 where a sexual assault kit was completed and a vaginal swab was collected;
b. a male profile was developed from the vaginal swab, which profile was designated as Male 1;
c. a DNA sample was taken from the accused through a DNA warrant;
d. the Royal Canadian Mounted Police laboratory generated a report in November 2020 advising that the DNA sample taken from the accused matched the Male 1 profile.
[12] The viva voce evidence at this trial came through the testimony of four witnesses, two called by the Crown and two by the defence, including the accused testifying in his own defence. The two witnesses called by the Crown were the complainant and a woman I will identify by the initials, R.J. R.J. was a friend of the complainant at the time in question and remains so presently. In addition to the accused, the defence called the family physician who conducted the examination for the sexual assault kit.
Crown witnesses
[13] An appropriate place to begin describing the narrative of this case is the relationship between the complainant and R.J. In 2019, both women lived in Saskatoon. R.J. was living with her boyfriend, N.R., in a 900 square-foot one-bedroom apartment on the west side of the city, which I will hereafter describe as R.J.’s apartment. The Court learned that the complainant’s initial friendship was with N.R., who later introduced her to R.J. Following the introduction, the two women became good friends.
[14] The timeline for the narrative of the events begins on the evening of November 7, 2019, the day before the complainant’s birthday. To mark the occasion, the complainant had two celebrations, one beginning on November 7 and carrying on past 12:00 a.m. on November 8, and another later on the evening of November 8. On both occasions she went out to bars with friends. Although the complainant confidently testified that R.J. attended only the first celebration, it is R.J.’s equally confident recollection that she attended both.
[15] The narrative of events leading to the allegations in the indictment begins with the second celebration on November 8. The complainant testified that she attended three bars that evening, where she met up with one or more friends. Two of the bars were on 8th Street in Saskatoon and the other was a nightclub located downtown, known by the name “Pink”. The complainant told the Court that the friends she caught up with were N.R. and another individual, M.S., whom the complainant identified as the “designated driver’ for the evening. The complainant testified that she remained at Pink with M.S. and N.R. until closing, sometime around 2:00 or 3:00 a.m.
[16] In answer to questions posed by both counsel, the complainant described the alcohol she consumed that evening in the three bars. To the best of her recollection, she believed she had one drink (possibly rum and Coke) at the first bar; two drinks (likely another rum and Coke and a mixed cocktail) at the second bar; and at least three drinks at the third bar. In addition, the complainant testified that she bought a half bottle of inexpensive champagne at the third bar, which she shared with her friends. Although she later smoked marijuana, the complainant was adamant that she did not consume any more alcohol after leaving Pink.
[17] The complainant testified that the accused did not join her and her friends until after they left the third bar. She testified that N.R. introduced her to the accused outside the bar. N.R. asked if the accused could “hang out” with the group and the complainant agreed.
[18] After the accused joined the group, the complainant believed they went to the home of one of the accused’s friends for a short time, followed by a drive to R.J.’s apartment. She also said that M.S. did all the driving for the night. According to her, M.S. stayed at the apartment for only a short time.
[19] The complainant told the Court that R.J. was sleeping when the group arrived but awoke shortly after. After M.S. left, there were four people in the apartment, N.R., R.J., the accused and the complainant. The complainant testified that N.R. and R.J. went to bed approximately 30-45 minutes after the group arrived at the apartment. She remembers that, during that interval, R.J. made her a sandwich so that she could take her medication.
[20] According to the complainant, the only one-on-one interaction she had with the accused during this interval was when she mentioned that her feet hurt and the accused volunteered to give her a foot massage. The complainant agreed. She said that nothing untoward occurred when the accused rubbed her feet.
[21] The complainant also said that she planned to spend the night at R.J.’s apartment as she had done on previous occasions, including the night before. To do so, she arranged some blankets on the living room floor as a makeshift bed. Her sleep clothes consisted of a T-shirt she borrowed from R.J. and pair of sweat pants with an elastic waistband.
[22] Meanwhile, the accused also planned to spend the night in the living room. The complainant testified that the accused planned to sleep on a beanbag chair in the living room. She apparently voiced no objection to him doing so.
[23] The complainant testified that, sometime after she went to bed and while laying on her back, she felt the presence of someone. When she opened her eyes, she saw the accused walking toward her. Her first thought was that the accused was walking to the bathroom, but he stopped next to her and leaned over her. She testified that he tried to kiss her but that she turned her head away and told him she was very tired. The complainant told the Court that the accused persisted, continuing to kiss her and sticking his tongue down her throat. She said he ignored her continued comments about how tired she was.
[24] The complainant testified that the accused then placed his hand under her shirt and fondled her breast. She said he then managed to remove her sweatpants and underwear all in one motion. She added that, as he did so, the accused said nothing. Further, she said that she, herself, was in shock and did not say anything, either.
[25] The complainant told the Court that, after the accused removed her pants and underwear, he attempted to insert his penis inside her vagina, but found it difficult to do so. She said he then inserted his penis in her mouth. In this respect, she said she believed he did this in an effort to lubricate himself and facilitate intercourse. The complainant said that, when the accused inserted his penis in her mouth, she was still lying on her back. She further testified that she did not consent to any of this, and that the accused did not ask her permission.
[26] According to the complainant, the accused removed his penis from her mouth after a short time and then tried again to insert it in her vagina. She said he succeeded and that it hurt. The complainant also said that she continued to “mumble” about being tired, something she said in the hope that he would stop. Despite this, he persisted. The complainant described the accused having his arms and wrists over her collarbone and chest and pressing down. This resulted in her developing a friction burn from the living room rug.
[27] The complainant also testified that, while the accused’s penis was in her vagina, he placed his hands around her shoulders and then around her neck, squeezing it. She said she could not breathe and became quite frightened. This was followed by the accused slapping her across the face once “really hard”. This prompted her to cry, at which point she said the accused again placed his hands on her neck and squeezed. After that, when the accused gestured to slap her again, the complainant asked him to “please stop” but he slapped her face a second time.
[28] The complainant testified that, after the second slap, she “screamed at the top of her lungs”. In describing the scream later in evidence, the complainant testified that she screamed loud enough to wake everyone in the building. According to the complainant, her scream seemed to surprise the accused, prompting him to apologize. She went on to say that she managed to get up, wrap a garment around herself and run off to the bedroom where N.R. and R.J. were sleeping.
[29] The complainant testified that she told N.R. that the accused had “raped” her. She said that, while she had difficulty waking N.R., he eventually went out to the living room and told the accused to leave. Later, when the accused did not leave immediately, R.J. got up and told him to leave, which he did. The complainant believed that the accused left sometime around 5:00 a.m. In R.J.’s evidence, however, she testified that it was actually later than that, sometime around 7:00 or 7:30 a.m.
[30] The evidence discloses that, after the accused left R.J.’s apartment, the complainant discussed what had happened with R.J. and N.R., both of whom suggested she go to the hospital. She agreed, but only after she had an opportunity to sleep. Later that afternoon, R.J. drove the complainant to the emergency department of Royal University Hospital [RUH], where a sexual assault kit examination was conducted.
[31] During the cross-examination of the complainant, defence counsel questioned her extensively about the evening’s events, the interaction with the accused and the details about what happened in R.J.’s apartment. Except for her agreeing to foot rubs from the accused, the complainant denied any consensual one-on-one contact with the accused. In particular, she denied dancing with the accused, denied sitting close to him or leaning into him while sitting on a couch at R.J.’s apartment, denied kissing the accused back when he initiated that activity (which she later recanted, saying that she kissed the accused back in the hope that he would eventually stop) and denied consent to any sexual activity with the accused. In particular, the complainant vigourously denied defence counsel’s suggestion that she took the lead in any sexual activity. She did agree with defence counsel that her clothes were not ripped or damaged during the interaction with the accused.
[32] One matter that arose during cross-examination deserves comment, principally because it formed an aspect of defence counsel’s final submissions. This pertains to the complainant’s understanding of non-consensual sexual activity. In answering defence counsel’s questions, the complainant said that she did not say “No” or tell the accused to stop when sexual activity began and continued. She testified that she told the accused she was “tired”, something she thought to be the equivalent of saying “No”.
[33] Later, when defence counsel questioned the complainant about her conversations with the investigating police officer and with R.J. about what she did or did not consent to, she described her understanding of consent at the time those conversations occurred. She said she believed sexual activity could not be regarded as non-consensual unless a person said “No” out loud. When confronted with her statement to police that she let the accused put his penis in her vagina, the complainant explained that she knew she was not consenting but believed that saying nothing or letting it happen would be seen as consent.
[34] Much of the remaining cross-examination focused on conflicts and inconsistencies between the complainant’s evidence and either her police statement or the cumulative evidence of R.J. and the accused. Some of these inconsistencies were peripheral to the events in question – some less so. In addition to direct inconsistencies, defence counsel questioned the complainant about things she described in evidence, but which were not in her police statement. Roughly summarized, the inconsistencies included the following:
a. inconsistency between the complainant’s direct testimony and her statement to police about how much she had to drink at the various bars on the evening of November 8;
b. conflict between the complainant’s direct testimony and the evidence of both R.J. and the accused as to whether R.J. was with her on the evening of November 8;
c. conflict between the complainant’s direct testimony and the evidence of both R.J. and the accused as to whether she met the accused in Pink, and whether she danced with the accused there;
d. conflict between the complainant’s direct testimony and the evidence of both R.J. and the accused as to whose vehicle the group was in on the night in question;
e. conflict between the complainant’s direct testimony and the evidence of both R.J. and the accused about visiting the home of the accused’s friend before going to R.J.’s apartment;
f. inconsistency between the complainant’s testimony and her police statement that she did not regard the accused giving her a foot rub as “flirting”;
g. conflict between the complainant’s testimony and the evidence of both R.J. and the accused that they watched part of a movie at the apartment;
h. conflict between the complainant’s testimony and the evidence of both R.J. and the accused that the complainant and the accused were sitting together while watching the movie; and
i. inconsistency between the complainant’s testimony and her statement to police that she was kissing the accused back and “making out” with him.
[35] Three of these conflicts or inconsistencies deserve further description.
[36] The complainant was reasonably sure that R.J. was not with the group during the second celebration on the evening of November 8. This conflicts with the testimony of the accused and R.J., herself. Both witnesses testified, with apparent confidence, that the accused had been introduced to R.J. and the complainant in the third bar they had attended that evening.
[37] The complainant has no recollection of watching a movie at R.J.’s apartment before going to bed. This also conflicts with the testimony of R.J. and the accused, both of whom testified that at least three of the four people watched a movie for a short time before retiring for the night.
[38] Although the complainant denied “making out” with the accused, she acknowledged having given a statement to police to the effect that she did so. She explained this inconsistency by saying that she decided just to let the accused kiss her, believing that he would do this for only a short time and then leave her alone. In answer to further questions on this point, and as already mentioned, the complainant agreed that she did kiss the accused back.
[39] As earlier mentioned, R.J. testified as part of the Crown’s case. She was asked about the events of the two evenings in question. I have already alluded to R.J.’s confident testimony that she was with the complainant at both birthday celebrations. Indeed, she testified to a specific memory of having bought drinks for the complainant on both nights, including one immediately after midnight on the complainant’s birthday. She also specifically remembered being the designated driver for the group during the celebration on the evening of November 8.
[40] Until that evening, R.J. did not know the accused. She testified that she met him for the first time on the evening of November 8. That said, she seemed unsure whether the introduction was at Pink or another bar known as Crazy Cactus. Eventually, she agreed with defence counsel, in cross-examination, that N.R. introduced her and the complainant to the accused in Pink. After that, the four people remained together for the rest of the evening.
[41] Also in cross-examination, R.J. testified about the interaction between the complainant and the accused before they drove to her apartment later that night. In this regard, she told the Court that the accused and the complainant seemed to "hit it off". They were friendly and appeared to have a good time. She noted that the complainant was "giggly" around the accused, but perhaps not exclusively so.
[42] R.J. agreed with defence counsel that, before the evening was over, the complainant and the accused were both dancing. At first, she said they were not actually dancing with each other. R.J. modified her answer, however, when presented with the police statement she gave in May 2021. In that statement, she told police that, when the complainant and the accused were dancing, they had their hands on each other. She agreed with defence counsel that the statement was accurate.
[43] R.J. confirmed that, after the bar scene, the group went to her apartment. R.J. was still driving, while N.R. was in the passenger seat and the complainant and the accused sitting in the backseat. Another friend, M.S., drove to the apartment on his own, and stayed there for a short time. R.J. testified to having no recollection of visiting the home of another individual before driving to her apartment.
[44] R.J. testified that N.R. was quite intoxicated at the end of the evening. When the group arrived at her apartment, she put N.R. to bed. After that, she went back into the living room. In cross-examination, R.J. recalled that she and the complainant had some drinks in the living room and that the three of them began watching a movie. R.J. told the Court that, while watching a movie, the complainant and the accused were sitting together on the beanbag chair with the complainant leaning into him.
[45] R.J. estimated that she went to bed sometime between 3:00 and 4:00 a.m. She heard nothing until sometime between 7:00 and 7:30 a.m. when the complainant woke her. R.J. testified that the complainant was crying and appeared to be wearing a hooded cloak with almost nothing on underneath. She said the complainant told her that the accused had raped her. R.J. responded to this by going out to the living room and telling the accused to leave. When the accused did not leave immediately and told her that he had to wait for a cab, she told him to wait outside.
[46] R.J. confirmed that she eventually convinced the complainant to go to the hospital and drove her to RUH. She also confirmed that, during the interaction at the hospital, the complainant was emotional, crying and shaking.
[47] R.J. also testified about the photographs she had taken. She acknowledged that the photographs were not good depictions. That said, she has a specific memory of seeing rug burns on the complainant's back, consistent with the fact that there were rugs on the hardwood floor in her apartment.
[48] R.J. also testified that she saw light bruising on the complainant's neck as well as scratch marks on her collarbone. They were not visible when the complainant was at the hospital. She believed they showed up later.
[49] R.J. acknowledged that the bedroom where she and N.R. slept was immediately adjacent to the living room. In cross-examination, she said she did not hear any screams from the living room. That said, she told the Court that she is typically a deep sleeper and may simply not have heard the scream.
[50] In cross-examination, R.J. testified that the complainant told her that she did not say “No” to the accused's sexual advances. She also said that the complainant said that she was okay with the sex originally.
Defence witnesses
[51] As mentioned, the accused testified at trial in his own defence. He told the Court that, on November 8, 2019, he was working at a downtown club. His shift ended at 11:00 p.m., after which he went to the Pink nightclub.
[52] The accused testified that, when he arrived at Pink, there was a long lineup at the door. While waiting in line, he saw N.R. standing closer to the door. He had earlier been friends with N.R. but had not seen him for a few years. When he finally entered the bar, he looked for N.R. and eventually found him. He said they struck up a conversation following which N.R. introduced him to R.J. and the complainant. The four of them then sat together in a booth on the main level of the club.
[53] The accused remembered that the group stayed at the bar until closing. He also remembered that he and N.R. drank beer while R.J. and the complainant had mixed drinks of some kind. During this time, the accused estimated that he drank 3 pints of beer. By the time the group left the nightclub, N.R. was definitely intoxicated. As for the two women, the accused said that R.J. appeared quite sober and the complainant, while not drunk, appeared to be "lightly buzzed".
[54] After leaving Pink, the group went to R.J.'s vehicle where they agreed to go to her apartment. Unlike R.J., the accused did not mention anything about going to any other bar, such as the Crazy Cactus, that night. That said, he agreed with R.J. that they did not visit another home before ending up at R.J.’s apartment.
[55] While en route to the apartment, the complainant complained about her feet hurting. The accused said he offered to give her a foot massage to which she agreed. He recalls massaging her right foot in the backseat of the car.
[56] After arriving at the apartment, the accused said that he had another drink with N.R., before N.R. went to bed. He was not sure if R.J. or the complainant had another drink.
[57] The accused testified that, after the complainant changed into her sleep clothes, the group watched a movie in the living room for approximately 30 to 45 minutes. From his evidence, it was unclear to me whether N.R. also watched the movie. The accused testified that, during the movie, he and the complainant were sitting together on a couch. He said that, while sitting on the couch, he had his right arm around the complainant while she had both arms around his waist. He described their position as "cuddling".
[58] The accused told the Court that, after watching the movie, he and the complainant were alone in the living room, while R.J. and N.R. slept in the adjacent bedroom. According to the accused, he and the complainant began “French kissing” with the complainant actively participating and kissing him back. As for the complainant’s demeanour, the accused said she did not object to any of the intimacy. Rather, he described her as somewhat "giggly".
[59] The accused testified that, after approximately five minutes of kissing, he moved over to a beanbag chair where he laid on his back. He said that the complainant helped him remove his jeans, following which she proceeded to perform oral sex on him. The accused specifically testified that the complainant took the lead in this activity. He also remembered that she continued to giggle periodically but was also trying to keep quiet so as not to wake anyone.
[60] The accused told the Court that, after approximately five minutes of oral sex, the complainant removed her pants, which he described as similar to pyjama bottoms, and crawled on top of him. The accused acknowledged that, after the complainant climbed on top, he inserted his penis inside her vagina and the two people engaged in intercourse. Throughout this activity, the accused said there was no conversation between them, and that the complainant was smiling and moaning.
[61] The accused testified that, after several minutes of intercourse with the complainant on top, they switched positions so that he could be on top. He then reinserted his penis. He described the position as rather awkward, particularly for him. Despite the awkwardness, he told the Court that the complainant's demeanour did not change.
[62] At some point, according to the accused’s testimony, he moved the complainant from the beanbag chair to the floor rug. He said he performed this manoeuvre rather clumsily causing the complainant to land on the floor with a thud. Despite this, he remembered the complainant laughing about it and thinking it was funny.
[63] The accused testified that they continued having intercourse on the rug. As they did so, he placed his right hand on the complainant's shoulder so that she would not slide on the rug. Meanwhile, he recalled that the complainant had her hands on his shoulders. In answer to specific questions by defence counsel, the accused told the Court that, until just before the intercourse ended, the complainant's demeanour did not change, and that she did not ask him to stop. He expressly denied placing his hands on the complainant’s throat, neck or collarbone. He similarly denied slapping the complainant at any time.
[64] According to the accused, the sexual intercourse on the rug carried on for about four or five minutes, following which the complainant’s demeanour abruptly changed. The accused told the Court that the complainant stopped smiling and began pushing his shoulders away instead of holding them. She appeared very uncomfortable and asked the accused to stop, which he did. He said he immediately stood up and went back to the beanbag chair after which the complainant stood up, wrapped herself in a garment of some kind and left the living room. The accused told the Court that he could tell the complainant was upset but that he had no idea what he may have done to upset her.
[65] After a few minutes, R.J. came out of the bedroom and asked the accused to leave. Although confused by what had happened, the accused said he got dressed and prepared to leave. Before he left, N.R. may also have come out and told him to leave. Eventually, the accused did leave, but he said he was unable to call a cab because he had inadvertently left his cell phone at home when he went to work.
[66] The accused also testified about the Facebook message he sent to the complainant on November 10. This message was the subject of an application under s. 8 of the Canadian Charter of Rights and Freedoms. The ruling in respect of that application is reported at R v Bear-Knight,2021 SKQB 258. As described in that ruling, the message the accused sent read as follows:
Hey … it’s the guy from the other night. I’m sure you don’t want to talk to me but I just had to say I’m terribly sorry for what I did. No apolgie [_sic_] will make it better I know. I just needed to say something at the very least. It was nice meeting you.
[67] The accused admitted sending the message. He told the Court that, on the day he sent the message, he happened to see the complainant downtown, but from a distance. The accused said that, when he saw her, he thought about her reaction to what had occurred in R.J.’s apartment. He said he knew she was upset and was worried he may have hurt her. This led him to send the message later that night. When cross-examined on the message, the accused told the Court that he was somewhat under the influence when he sent it and did not put as much thought into its wording as he should have done. Although he acknowledged that the message contained an apology for what he did, he testified that he did not know what he had done to offend or upset the complainant. That said, he knew something had upset her and he felt the need to apologize.
[68] The fourth witness to testify in this trial was the physician who completed the sexual assault kit. This physician was a general practitioner who had conducted approximately 30-40 such examinations during his career. Because he did not have an independent recollection of his attendance with the complainant, he testified primarily from his dictated record, which was not exhibited at trial because it contained other inadmissible information. He also relied on information recorded in the kit’s history form as well as a document identified as a “traumagram”, both of which became trial exhibits. As the name suggests, a traumagram is a multi-page document containing basic anatomical diagrams on which the physician is expected to record evidence of trauma.
[69] From the documents available to him, the physician testified that the complainant was “calm”, “sober” and “rational” during his interaction with her. Having said this, he also testified that she was “crying and tearful” during the particularly sensitive portion of the physical examination.
[70] On the traumagram, the physician made only one entry, identifying a “mild abrasion” on the complainant’s lower mid back. In answer to the Court’s question, the physician elaborated, describing the abrasion as an area of redness, without evidence of a laceration. He also said it was consistent with a scrape or a “rug burn”.
[71] The examining physician was also asked about the appearance of bruising. He testified that, if bruising is seen during the examination, it is always recorded. In the complainant’s case, he did not record any bruises. Having said this, in cross-examination and in answer to questions also posed by the Court, he testified that it was theoretically possible for bruising not to appear until a day or two later. He emphasized that this depends on the severity of the trauma.
Law
Elements of the Offences Charged
[72] The first count in the indictment alleges that the accused sexually assaulted the complainant. The relevant provision of the Criminal Code is s. 271(a), which reads as follows:
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; …
[73] The essential elements for sexual assault are now generally well known. In David Watt, Watt’s Manual of Criminal Jury Instructions, 2d ed (Toronto: Thomson Reuters, 2015) at 598-605, Justice David Watt sets out an instruction that contains four essential elements. The elements are derived from the judgment of the Supreme Court of Canada in R v Ewanchuk, 1999 CanLII 711 (SCC), 1999 SCC 711, [1999] 1 SCR 330 [_Ewanchuk_]. In order to establish the guilt of the accused on a charge of sexual assault, the Crown must prove, beyond a reasonable doubt, each of the following:
(1) that the accused intentionally applied force to the complainant (such application of force, in this sense, includes the simple act of touching the complainant);
(2) that the complainant did not consent to the force that the accused intentionally applied;
(3) that the accused knew that the complainant did not consent to the force that he intentionally applied; and
(4) that the force the accused intentionally applied took place in circumstances of a sexual nature.
[74] As described above, the_actus reus_ components of the offence are reflected in the first, second and fourth essential elements. They are: 1) application of force; 2) the sexual nature of the force applied; and 3) the absence of consent. The _mens rea_components of the offence are reflected in the first and third essential elements. They are: 1) the intention to touch; and 2) the knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions from the person being touched. See Ewanchuk at paras 23 and 25.
[75] The second count in the indictment alleges that the accused assaulted the complainant and, in doing so, choked, suffocated or strangled her. The relevant provision of the Criminal Code in this regard is s. 267(c), which reads as follows:
267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,
… ,
(c) chokes, suffocates or strangles the complainant.
[76] The offence in s. 267(c) is relatively new. Essentially, it creates an offence equivalent to assault causing bodily harm. The offence is made out where the Crown proves, beyond a reasonable doubt, the essential elements of an assault, namely, the intentional application of force without consent, but with the added essential element of choking, suffocating or strangling the person assaulted. The question of consent only applies to the application of force. As in the case of assault causing bodily harm, where the accused intentionally choked, suffocated or strangled a complainant, consent is irrelevant.
[77] As for the conduct that constitutes, choking, suffocating or strangling, the words must be construed in the context of the provision in which they appear. In the context of an assault, I find they generally refer to conduct designed to prevent or seriously impair a person’s ability to breath. In this sense, there is overlap between the concepts of “choking,” “suffocating” and “strangling”. They include actions designed to block or constrict a person’s airway, such as by squeezing the neck or throat, or covering the nose and mouth.
Proof Beyond a Reasonable Doubt
[78] In criminal cases where witnesses give diametrically conflicting versions of salient events, which are beyond the eyes and ears of others, there is the natural human tendency to assume that the outcome of the case will turn on a simple credibility contest – the belief of one version over the other. This assumption fails to account for two concepts long regarded as the twin pillars of the criminal justice system, namely, the presumption of innocence and the required standard of proof beyond a reasonable doubt. For more than 240 years, these concepts have become fundamental to common law systems of criminal justice – so much so that they are now enshrined as matters of constitutional law in many countries, Canada included. These concepts demand that an accused person shall have the benefit of any reasonable doubt that exists in proving the essential elements of a charge in an indictment. Whether such a doubt exists may arise from the absence of evidence on a point, or from the presence of admissible evidence, including testimony given by the accused person.
[79] To understand the concept of reasonable doubt as it is applied in Canadian law, it is helpful to review the two principal authorities on the subject from the Supreme Court of Canada. The first authority is R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 [_Lifchus_]. At para. 39 of Lifchus, the Court set out the following definition, expressed in the form of a draft instruction for trial judges to give to a jury:
[39] …
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[80] The second authority is_R v Starr_, 2000 SCC 40, [2000] 2 SCR 144 [_Starr_]. In Starr, the majority of the Court concluded that the trier of fact must be instructed on the distinction between the criminal standard of proof beyond a reasonable doubt and the civil standard of proof on a balance of probabilities or the preponderance of the evidence. In this regard, Iacobucci J. wrote the following at para. 242:
[242] In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:
If standards of proof were marked on a measure, proof “beyond reasonable doubt” would lie much closer to “absolute certainty” than to “a balance of probabilities”. Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed. ...
[81] The proof beyond a reasonable doubt standard applies to all substantive criminal offences. As a number of judges have noted, controversy has arisen over its application to offences of a sexual nature, so much so that some commentators have questioned its application to such offences.
[82] One case that directly addressed this controversy is the 2017 decision of the Ontario Superior Court of Justice,R v Nyznik, 2017 ONSC 4392, 350 CCC (3d) 335 [_Nyznik_]. In Nyznik, Molloy J. acknowledged the controversy and addressed it directly in paras 11 to 17. She began her commentary by acknowledging the practical difficulty of resolving conflicting evidence in pure “he said/she said” scenarios. Her commentary went on to identify the error that would arise from simply preferring the testimony of one over that of another:
[12] First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye‑witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other ‑‑ the classic “he said/she said” scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe the defendant’s version of the events, and might find the complainant’s version to be more credible, but still be uncertain as to what actually happened. In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant’s story is more plausible or more believable than that of the defendant.
[83] Perhaps more importantly, Molloy J. stated that despite the obvious practical difficulties, the law has repeatedly affirmed the importance of the burden that demands proof beyond a reasonable doubt. In this respect, she wrote the following at paras. 16 and 17:
[16] It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye‑witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are neverconvicted.
[17] Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.
[Emphasis in original]
[84] The judgment in _Nyznik_also observed that the reasonable doubt standard and the presumption of innocence carry particular importance where accused persons take the witness stand and give exculpatory testimony in their own defence, as the accused did in the present case. In such circumstances, the issue is not whether the defence evidence is believed or even preferred to that of the Crown evidence which contradicts it. Rather it is whether the defence evidence, considered in the context of all the evidence, raises a reasonable doubt.
[85] An understanding of the importance of this issue begins with the Supreme Court of Canada’s judgment in R v W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 [_W.(D.)]. In_W.(D.), Cory J., writing for the Court, articulated a jury direction that has now become an integral part of every jury instruction where an accused person testifies in his or her own defence. I think it best to recite the actual words used by Cory J., at pp 757 to 758 of the Court’s judgment:
… It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
In a case where credibility is important, the trial Judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial Judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial Judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin [1988 CanLII 8 (SCC), [1988] 2 SCR 345], at p. 357.
Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. A trial Judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
If that formula were followed, the oft‑repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
[86] The W.(D.) instruction, as described above, has received its fair share of criticism. In R v J.H.S., 2008 SCC 30 at paras 13‑14, [2008] 2 SCR 152, Binnie J. expressed concern about the lackadaisical use of the framework. He reiterated the words of Cory J., himself, in R v S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 SCR 521 at p 533, where he said that the instruction is not to be given “word for word as some magical incantation.” As I discern these comments, they are instructions for trial judges to emphasize substance over form in credibility assessments to which the _W.(D.)_instruction is said to apply.
[87] In the last three years, the line of cases addressing the W.(D.) framework has culminated in judgments of the Ontario, Saskatchewan and Alberta Courts of Appeal in such judgments as R v Fogah, 2018 ONCA 564, 362 CCC (3d) 4; R v Groshok,2019 SKCA 39; and R v Ryon, 2019 ABCA 36, 371 CCC (3d) 225 [_Ryon_]. In this Court, the relevant line of cases continues with R v Panasiuk,2019 SKQB 258; R v Vandewater, 2020 SKQB 55; R v Douglas, 2020 SKQB 155; R v C.J., 2020 SKQB 318; R v Al-Zawahreh, 2021 SKQB 230;R v D.M.V., 2021 SKQB 237 [_D.M.V._] and R v F.I., 2021 SKQB 264 [_F.I._]. Later in this analysis, I will speak to how this framework applies to this trial.
[88] The judgment of the Alberta Court of Appeal in Ryon deserves particular comment. In Ryon, Martin J.A. identified five specific concerns about the literal application of the W.(D.) instruction, all relating to substance over form. After identifying these concerns, Martin J.A. proposed a modification of the instruction, such that it would apply only to exculpatory evidence, whether presented by the Crown or the accused. The proposed modification also addressed the importance of the trier of fact, be it a jury or a judge sitting alone, understanding the impact of the presumption of innocence and the need for proof beyond a reasonable doubt. In this respect, Martin J.A. wrote the following at para. 51:
51 Then the charge should impart the following information:
(i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence.)
(ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component discussed at para 31).
(iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit.
(iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.
[89] In revisiting the _W.(D.)_instruction, the judgment in Ryon also reaffirmed another important point, namely, that an accused’s testimony cannot be considered first or in isolation from the other trial evidence. In the view of Martin J.A., such an approach carries the risk that the trier of fact will fix its focus on the demeanour and testimony of the accused and fail to consider incriminating evidence given by other witnesses. He expressed obvious preference for the approaches commended in R v Carri è re (2001), 2001 CanLII 8609 (ON CA), 151 OAC 115 (Ont CA) and R v Dinardo,2008 SCC 24, [2008] 1 SCR 788. In the latter of these two authorities, at para. 23, Charron J. discussed the importance of placing the _W.(D.)_instruction in context:
23 The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.
[90] It is worthwhile noting how the Court in Ryon applied the principles reflected in the modified instruction to the facts before it. In that case, the appellant and the complainant consumed recreational drugs and engaged in consensual sexual activity. Eventually, the appellant positioned himself in order to have intercourse with the complainant. When the complainant objected, the appellant took no further steps. The next morning, the appellant again positioned himself for intercourse, and the complainant again objected. In her testimony at trial, the complainant said that the appellant had briefly penetrated her and that she abruptly and angrily left the tent where they had stayed the night. The appellant, testifying in his defence, admitted having positioned himself for intercourse, believing that the complainant’s behaviour that morning suggested she had changed her mind from the night before. He also testified that, other than positioning himself in this way, he took no further steps by the time the complainant abruptly left the tent. The only issue at trial was whether the appellant had vaginal intercourse with the complainant, even momentarily.
[91] The trial judge, sitting alone, convicted the appellant of sexual assault. In doing so, the trial judge focused his reasoning on the complainant’s abrupt and angry departure from the scene. In his view, there was no reason for the complainant to have acted as she did unless the appellant had exceeded the limits of her consent.
[92] The Alberta Court of Appeal, in two concurring majority and minority judgments, allowed the appeal and ordered a new trial. Writing for the majority, Martin J.A. criticized the trial judge for disregarding the plausibility of the appellant’s evidence. He noted that neither the complainant’s nor the appellant’s testimonies were “obviously implausible”. In this context, Martin J.A. concluded it was wrong for the trial judge to have focused on the complainant’s ambiguous testimony to the extent of disregarding the appellant’s equally plausible explanation. On this point, Martin J.A. wrote the following at paras. 64 and 65:
[64] With respect, the trial judge’s reasoning on this crucial point is troubling because the complainant’s abrupt departure was equally supportive of both the appellant’s and the complainant’s testimony. The complainant may have left as suddenly as she did because intercourse had occurred against her will or because she was upset that the appellant tried again to have intercourse even after she had made it clear she did not want that.
[65] Given the fundamental ambiguity of this evidence and its pivotal role in the trial judge’s reasoning, it was incumbent on the judge to consider and explain why the appellant’s equally plausible account for the complainant’s sudden departure was not true and did not raise even a reasonable doubt.
[93] In D.M.V., Danyliuk J. was mindful of all the considerations in the _W.(D.)_instruction as well as the review in Ryon, which considerations he described at paras. 118-120. In that case, the accused testified in her own defence against a charge of sexually assaulting her partner’s 15-year-old son. Danyliuk J. found that he preferred the evidence of the complainant over that of the accused where it conflicted. Quite properly, he stated that this finding did not end the Court’s inquiry, noting that the W.(D.) instruction still required a determination as to whether the accused’s testimony left him with a reasonable doubt. Based on serious flaws in her testimony, such as the absence of adequate explanations for matters she relied on as well as internal and external conflicts apparent in her testimony, Danyliuk J. found that the accused’s testimony did not leave him with a reasonable doubt.
[94] In F.I., Tochor J. endorsed the approach followed in D.M.V. Similarly, he found that the accused’s testimony did not leave him with a reasonable doubt as to the accused’s guilt. Among other problems in the accused’s evidence, Tochor J. noted a series of inconsistencies between the accused’s testimony and his prior statement to police, portions of which the accused admitted were deliberate lies.
Absence of Consent
[95] Of the three components that make up the actus reus of sexual assault, there is no dispute in this case about either the application of force (touching) or the sexual nature of the force applied. As between the Crown and the defence, the disputed essential elements in this case are: (1) the absence of consent; and (2) if absence of consent is proved, whether the accused knew she did not consent.
[96] Under the present state of the law in sexual assault prosecutions, the inquiry as to whether a complainant consented to sexual activity is confined solely to the complainant’s state of mind. Subject only to the applicable burden and standard of proof, the complainant either did or did not consent. There is nothing in between. Canadian law does not recognize any concept of “implied consent”. The subjective nature of this essential element is explained in Ewanchuk. There, Major J. addressed the concept, at paras. 26-27, as follows:
26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38; aff’d1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304, R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law(3rd ed. 1995), at p. 513.
27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.
[97] Major J. also addressed, albeit in a general way, the nature and quality of the evidence to be considered in determining whether absence of consent has been established. In this respect, he wrote the following at paras. 29-30:
29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the _mens rea_stage of the inquiry.
[98] With this understanding from Ewanchuk, it is important, at this stage, to note the statutory provisions relating to the nature of consent. They are set out in ss. 265(3),265(4) and 273.1 of the Criminal Code, and read as follows:
265 …
**(3)**For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
…
**273.1(1)**Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(1.1) Consent must be present at the time the sexual activity in question takes place.
(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.
(2) For the purpose of subsection (1), no consent is obtained if
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
[Emphasis added]
[99] The Court is mindful that ss. 265(3) and (4) apply to the offence of assault, generally. While their application cannot be disregarded in sexual assault prosecutions, s. 273.1(1) specifically applies to all prosecutions for offences under ss. 271, 272 and 273.
[100] The definition of consent in s. 273.1(1) requires a “voluntary agreement” on the part of the complainant to engage in the sexual activity in question. The Supreme Court of Canada addressed this definition in R v Hutchinson, 2014 SCC 19, [2014] 1 SCR 346. In that decision, the Court made it clear that such a voluntary agreement must be to each and every act that occurred. Moreover, a complainant is not obliged to express a lack of consent either by words or conduct. In keeping with the analysis in Ewanchuk, there is no consent unless a complainant has agreed in his/her mind to the sexual activity in question at the time it was occurring. External action or inaction on the part of the complainant, such as silence, submission or the lack of resistance, does not amount to consent if the complainant has not subjectively agreed to the activity.
[101] Of course, and as noted in Ewanchuk, a complainant’s state of mind may not be conclusively determined by what she/he describes in oral testimony. While obviously an important consideration, it is but one part of the totality of evidence the trier of fact must consider. In the context of a sexual assault trial, this necessarily includes all the circumstances surrounding the physical contact between a complainant and an accused person. The trier of fact is required to take into account any words or gestures, including evidence of any ambiguous or contradictory conduct or any other indication of the complainant’s state of mind at the time of the events in question.
[102] Where the Crown proves absence of consent beyond a reasonable doubt, the trier of fact’s inquiry turns to the next essential element, namely, whether the Crown has also proved that the accused person in question knew the complainant did not consent. On this point, the Supreme Court of Canada has again provided helpful guidance, through authorities such as Ewanchuk, R v J.A., 2011 SCC 28, [2011] 2 SCR 440 and R v Barton, 2019 SCC 33, [2019] 2 SCR 579. As articulated and reaffirmed in these cases, to establish this element of the offence, the Crown must prove, beyond a reasonable doubt, one of the following circumstances:
a. that the accused person subjectively knew the complainant did not consent to the sexual activity in question; or
b. that the accused person knew there was a risk the complainant did not consent to the sexual activity in question and proceeded despite that risk; or
c. that the accused was aware of indications the complainant did not consent to the sexual activity in question but deliberately chose to ignore those indications because he did not want to know the truth, a concept known as wilful blindness.
Analysis
Count 1 – Sexual Assault
[103] In the sexual assault charge, the only elements in dispute relate to whether the Crown has proved the absence of consent and, if so, whether the Crown has proved that the accused knew the complainant was not consenting. Of course, it bears repeating that the standard of proof the Crown must meet is that of proof beyond a reasonable doubt.
[104] In considering the application of s. 273.1 of the Criminal Code, I find no reason to question the complainant’s capacity to consent to sexual activity, assuming she was inclined to do so. All the evidence, including that of the complainant, suggests that her alcohol and substance consumption that evening was insufficient to negate any such capacity, and I so find.
[105] Having made this finding, the question then turns to whether the Crown has proved, beyond a reasonable doubt, that she did not subjectively agree to engage in sexual activity with the accused. In keeping with the principles enunciated in Ewanchuk, the Court’s inquiry is confined to an assessment of the complainant’s state of mind at the time in question.
[106] The inquiry into the complainant’s state of mind necessarily begins, but does not end, with her testimony. Simply put, the complainant testified that, subjectively, she did not consent to sexual activity with the accused.
[107] In her submissions, defence counsel made much of the complainant’s testimony about her telling others that part of the intimate activity with the accused was consensual. To be fair to the complainant, her somewhat distorted understanding of consent may have contributed to these inconsistencies. To briefly repeat that part of her evidence, she explained that she understood the failure to say “No” or the failure to resist would indicate consent, and that these indications would prevail, irrespective of her actual state of mind, which was that she did not consent. As I heard the complainant’s testimony, it was this misunderstanding that moved her to tell the police, and possibly R.J., that some of the intimate activity between her and the accused was consensual.
[108] In my view, the complainant’s professed misunderstanding of consent at the time in question was not altogether unreasonable. The concept of consent can be complicated, so much so that it is the subject of considerable jurisprudence and a formal definition in the Criminal Code. To expect her to describe “consensual” contact in the context of the applicable legal principles that inform the meaning of consent would be unfair. Accordingly, I do not attach as much significance to this aspect of the complainant’s testimony as did defence counsel.
[109] As for the complainant’s testimony generally, certain of the other inconsistencies in her evidence give me some reason for concern about the reliability of her recollections. In saying this, I recognize that, except for the conflict with the accused’s testimony, none of the notable inconsistencies touch directly on the issue of consent. This includes inconsistencies about whether R.J. was in the group during the evening, the time spent with the accused in the bar, whether the group visited the home of the accused’s friend or what they were doing before R.J. went to bed. Even so, to the extent these inconsistencies may not be matters about which a person would likely be mistaken, they raise modest, but not entirely insignificant, concerns about the reliability of some aspects of the complainant’s evidence.
[110] Further, it must be remembered that the complainant’s testimony is not the only evidence for the Court to consider in determining whether the Crown has proved an absence of consent. As already mentioned, the Court must also assess the other evidence that purports to describe the physical contact between the complainant and the accused. This must necessarily include the testimony of the accused.
[111] In the present case, the accused’s testimony about his interaction with the complainant is substantially different, if not diametrically opposed, from hers. His evidence describes conduct on the part of the complainant that, if believed, would be inconsistent with absence of consent. This brings the W.(D.) and modified _Ryon_instructions to the fore. In directing myself on this instruction, I have had to be mindful of my obligation to consider and assess the accused’s testimony in the context of all the evidence presented at trial.
[112] In considering the accused’s evidence, it is noteworthy that, except for the testimony of the complainant, his evidence is not materially inconsistent with any of the other evidence given at trial. While the accused’s testimony is not completely ad idem with that of R.J., it is certainly more consistent with her evidence than that of the complainant.
[113] In further considering the accused’s evidence, the Court cannot ignore the Facebook message he sent to the complainant on November 10. In his message, there is no question that he conveyed an apology for his conduct – an apology that could be seen as potentially incriminating. That said, the message does not specifically describe the conduct for which the apology was given. There is no dispute in the evidence that the complainant was upset at the time she ran into R.J.’s bedroom. The accused, however, said he was confused about why she was upset and whether he may have done something to cause it. It was for this reason that he sent the message, which he acknowledged to have been poorly worded.
[114] While the message he sent may be consistent with him having sexually assaulted the complainant, I cannot say, with any degree of comfort, that it is logically inconsistent with any other innocent or less incriminating conclusion. Moreover, I cannot say that it is logically inconsistent with his testimony. If the sexual activity occurred in the manner he described, it is not inconceivable that he would be confused by the complainant’s reaction. It is similarly not inconceivable that he might wish to apologize for the extent to which he may have contributed to that reaction. When viewed in this context and in the context of all the evidence, I am not persuaded that the Facebook message amounts to an admission or confession to the offences charged.
[115] As for the direct and obvious conflict between the accused’s testimony and that of the complainant, I find that it presents the same type of situation discussed in Ryon. While I have expressed concerns about the reliability of certain aspects of the complainant’s evidence, I cannot say that her description of the events, in the context of all the evidence, is so flawed that it is obviously implausible. Similarly, and again in the context of all the evidence, I cannot say that the accused’s description of what occurred is obviously implausible. Moreover, and as was the case in Ryon, the evidence of the complainant’s reaction after her interaction with the accused is equivocal. It does not obviously negate or diminish the plausibility of either version of events.
[116] The plausibility of the complainant’s and the accused’s respective testimonies, when considered in the context of all the trial evidence, leaves me with a reasonable doubt about the absence of the complainant’s consent to the sexual activity in question. It follows that I need not consider the final essential element of the offence, and that I must find the accused not guilty of sexual assault. More significantly, I find no basis for the Court to reject or to categorically disbelieve the accused’s version of events.
Count 2 – Assault by Choking, Suffocating or Strangling
[117] It is apparent that, having regard to all the evidence in this trial, the same plausibility analysis arises with respect to the charge in Count 2 of the indictment. The accused’s testimony that he did not place his hands on the complainant’s neck and did not intend to choke, strangle or hurt her is not obviously implausible. Moreover, the medical and photographic evidence on this point is inconclusive and does not negate or significantly diminish the plausibility of the accused’s testimony.
[118] It necessarily follows that, on much the same analysis as for the charge in Count 1, the Court must find the accused not guilty of the charge in Count 2.
Conclusion
[119] In the final result, the Court finds the accused not guilty of both counts in the indictment.
____________________________J.
R.W. ELSON