Crown: A. Ghosh, Assistant Crown Attorney, Newmarket
Defence: Craig Penney, Toronto Sexual Assault Lawyer
[Note: actus reus means "the act"; mens rea means "the intent."]
¶ 1 THE COURT: [The complainant] held a birthday party for her daughter Sara on June 26, 2004. Adults and children attended. Mr. K. attended the party as a friend of one of the invited guests, M.H. In the evening Mr. K. left the party and drove in his truck to a local convenience store just a few minutes away to buy some cigarettes. [The complainant] went with Mr. K. to the store. After Mr. K. and [the complainant] purchased their cigarettes they went back to the truck. As between [the complainant] and Mr. K. there is agreement on only three matters which occurred thereafter; firstly that the two were gone from the party for over an hour on a trip to the convenience store that should have taken only a few minutes; secondly that during this period of more than an hour the two of them engaged in sexual contact with each other; and thirdly that Mr. K. drove [the complainant] back to her residence after the sexual contact between the two of them ended.
¶ 2 [The complainant] asserted that she did not consent to any sexual act performed by or with Mr. K. [The complainant] also asserted that Mr. K. threatened to harm her and her daughter if she chose to tell anyone about Mr. K.'s sexual contact with her.
¶ 3 Mr. K. asserted that [the complainant] consented to and was a willing participant in the sexual acts that occurred between them. Mr. K. denied threatening to harm [the complainant] or her daughter.
¶ 4 Upon returning home [the complainant] and her boyfriend A.P. argued about where [the complainant] had been and why she was gone for over an hour. [The complainant] offered an explanation that she had visited her sister, J. [Her boyfriend] said that was untrue, as he had spoken with J. [The complainant] left the residence. Sometime later that same evening [the complainant] told [her boyfriend] that Mr. K. had raped her. [Her boyfriend] called the police. Following an investigation, Mr. K. was charged.
¶ 5 The Charges: (1) Mr. K. is charged that on or about the 26th day of June in the year 2004 at the Town of East Gwillimbury in the Regional Municipality of York and else where in the Province of Ontario did commit sexual assault on [the complainant] contrary to Criminal Code section 271 and further that; (2) Mr. K. on or about the 26th day of June in the year 2004 at the Town of East Gwillimbury in the Regional Municipality of York and elsewhere in the Province of Ontario did knowingly utter a threat to [the complainant] contrary to the Criminal Code section 264.1(1)(a).
¶ 6 The Issues: The issues at trial are: a) Credibility and reliability in relation to both charges of sexual assault and threatening; b) Consent in relation to the charge of sexual assault.
¶ 7 Procedure: On June 28, 2005, the Crown elected to proceed by indictment.
¶ 8 The defendant elected to be tried in the Ontario Court of Justice.
¶ 9 The Defendant pleaded not guilty.
¶ 10 The Court heard testimony from three Crown witnesses, namely [the complainant], [her boyfriend] and M.H. on January 28, February 2 and April 28, 2005. The Court also heard testimony from the defendant, Mr. K. on April 28, 2005.
¶ 11 Three exhibits were filed in the proceedings: Exhibit #1 — was a map of the geography and roads of the area. Exhibit #2 — was an audiotape of a 911 call by [the complainant] Exhibit #3 — was a sexual ID kit from the hospital where [the complainant] was examined.
¶ 12 On May 10, 2005, counsel delivered oral submissions supplemented by case authorities.
¶ 13 On May 30, 2005 the Court rendered a brief oral decision in which the defendant was found not guilty of both charges and both charges were dismissed. The Court reserved to provide more complete reasons. Those reasons are now released.
¶ 14 Position of the Parties — Crown: The Crown submits that the evidence establishes the guilt of the defendant Mr. K. on both charges beyond a reasonable doubt.
¶ 15 The Crown submits that the complainant, [the complainant], should be believed as a credible and reliable witness who testified in a forthright manner and whose testimony was confirmed in all essential matters by [her boyfriend], M.H., the exhibits, and to some extent the defendant himself.
¶ 16 The Crown submits that [the complainant] did not consent to being touched in any sexual manner by Mr. K. as he asserted in his evidence.
¶ 17 The Crown submits that the evidence of Mr. K. be rejected as it is contradictory and flawed with inconsistencies and improbabilities. As well, the Crown submits that the Court should be left with no reasonable doubt as to the defendant's guilt even upon a consideration of the defendant's evidence and evidence as a whole.
¶ 18 The Defence: The defence submits that the Crown has not proven beyond a reasonable doubt the guilt of the defendant on either of the charges and that both charges against the defendant be dismissed.
¶ 19 The defence submits that the Crown has failed to prove the absence of consent beyond a reasonable doubt and as such has failed to prove an essential component of the actus reus of the offence of sexual assault.
¶ 20 The defence submits that the Crown has failed to disprove the defendant's belief that [the complainant] was consenting to the sexual encounter and as such has failed to prove an essential component of the mens rea of the offence of sexual assault.
¶ 21 The defence submits that as the defendant testified, the Court must consider and apply the principles set out in R. v. W.D., [1991] 1 S.C.R. 742.
¶ 22 The defence submits that Mr. K. should be believed when he asserts that he neither sexually assaulted nor threatened [the complainant]. In the alternative the defendant's evidence when viewed as part of the evidence as a whole raises a reasonable doubt as to his guilt. In either case, the defendant should be found not guilty and both charges against him should be dismissed.
¶ 23 The Law — Sexual Assault: The applicable notion of assault and sexual assault are defined in section 265 and section 271 respectively. The relevant provision reads as follows:
¶ 24 265(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
¶ 25 265(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
¶ 26 265(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.
¶ 27 271(1) Every one who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years; or an offence punishable on summary conviction and liable to imprisonment for term not exceeding eighteen months.
¶ 28 Elements of the Offence — actus reus: The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C., 1985, c. C-46.
¶ 29 The offence is comprised of an assault within any one of the definitions in s. 265 (1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: see R. v. S.(P.L.), [1991] 1 S.C.R. 909.
¶ 30 Section 265 provides that: The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent.
¶ 31 The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, [1993] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293.
¶ 32 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), 106 C.C.C. (3d) 430 (Ont. C.A.) at pp. 437-38, aff'd [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dube J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513, R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481 S.C.C.
¶ 33 In sexual assault cases which centre on differing interpretations of essentially similar event I first consider whether the complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant asserted that she did not consent, the question is then one of credibility.
¶ 34 In making this assessment of fact I must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If I am satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual is established and the inquiry must shift to the accused's state of mind.
¶ 35 If there is reasonable doubt as to consent, or if it is established that the complainant actively participated in the sexual activity, I must still consider whether the complainant consented because of fear, fraud or the exercise of authority as enumerated in s. 265(3). The complainant's state of mind in respect of these factors need not be reasonable. If her decision to consent was motivated by any of these factors so as to vitiate her freedom of choice the law deems an absence of consent and the actus reus of sexual assault is again established.
¶ 36 mens rea: Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. See R. v. Daviault, [1994] 3 S.C.R. 63.
¶ 37 However, since sexual assault only becomes a crime in the absence of the complainant's consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. R. v. Ewanchuk, supra.
¶ 38 I must consider the defendant's claim that on the basis of the complainant's words and conduct he believed her to be consenting. This claim both contests the complainant's assertions that in her mind she did not consent and posits that, even if he was mistaken in his assessment of her wishes, he was nonetheless operating under a morally innocent state of mind. It is for me to then determine whether the evidence raises a reasonable doubt.
¶ 39 In cases such as this, the defendant's putting consent into issue is synonymous with an assertion of an honest belief in consent. It must be remembered that if that belief is correct and not mistaken in the sense that the complainant is found to have been a willing participant or the Crown has not proven the absence of consent as it relates to the actus reus beyond a reasonable doubt than that is the end of it and the defence has been made out by negating the actus reus.
¶ 40 If, however, the defendant's belief is found to be mistaken and the actus reus has been established then the honesty of that belief must be considered. As an initial step therefore I must determine whether any evidence exists to lend an air of reality to the defence. If so, I must then next determine whether the defendant honestly believed that the complainant had communicated consent.
¶ 41 To be honest the accused's belief cannot be reckless, wilfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused's mens rea, the charge is not proven.
¶ 42 Consent — The Criminal Code: The applicable notions of consent are defined in ss. 273.1 and 273.2 of the Code. The relevant provisions read: 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. (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where the agreement is expressed by the words or conduct of a person other than the complainant; the complainant is incapable of consenting to the activity; the accused induces the complainant to engage in the activity of abusing a position of trust, power or authority; the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or 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. 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where a) the accused's belief arose from the accused's (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
¶ 43 Consent — Applied to actus reus and mens rea: The issue of consent is a live issue in relation to the charge of sexual assault. The analysis of consent as it relates to the actus reus must be kept separate from the analysis of consent as it relates to the mens rea. "There is a difference in the concept of "consent" as it relates to the state of mind of the complainant vis-a-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus, "consent" means that the complainant in her mind wanted the sexual touching to take place. In the context of mens rea — specifically for the purposes of the honest but mistaken belief in consent — "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate." R. v. Ewanchuk, supra.
¶ 44 Threatening: The defendant was charged with threatening under section 264.1(1)(a) of the Code.
¶ 45 The applicable notions of threatening are provided for under s. 264.1(1)(a). The relevant provision reads: (1) Every one commits an offence whom, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person; to burn, destroy or damage real or personal property; or to kill, poison or injure an animal or bird that is the property of any person (2) Every one who commits an offence under paragraph (1)(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or an offence punishable on summary conviction and liable to imprisonment for term not exceeding eighteen months.
¶ 46 Elements of The Offence — actus reus: In determining whether or not the defendant's statements were a threat, the words are to be viewed objectively in the context of the circumstances in which they were spoken, the issue being whether they would convey a threat of death or serious bodily harm to a reasonable person.
¶ 47 mens rea: The mens rea of the offence is that the words spoken or written are a threat to cause death or serious bodily harm were meant to intimidate or, were meant to be taken seriously: R. v. Clemente (1994) 91 C.C.C. (3d) 1 S.C.C. "It is not an essential element of the offence that the person subjected to the threat actually fear for his or her safety as a result of the threat. Indeed, the person does not even have to know that the threat was made. The reaction of the person threatened is of evidentiary significance only: R. v. Carons (1978), 42 C.C.C. (2d) 19 (Alta. S.C., App. Div.); R. v. Remy (1993), 82 C.C.C. (3d) 176 (Que. C.A.) ...": R. v. MacDonald (2002), 170 C.C.C. (3d) 46 (Ont. C.A.).
¶ 48 General Burden of Proof: The burden of proof in this case, as in every criminal allegation, is upon the Crown to prove facts in support of the guilt of the defendant, on a basis of proof beyond a reasonable doubt. Reasonable Doubt A reasonable doubt as per Mr. Justice Cory's comments in R. v. Lifchus, [1997] 3 S.C.R. 320 is: "A doubt based on reason and common sense which must be logically based upon the evidence or the lack of evidence."
¶ 49 Alternatively it has been defined by Mr. Justice Iacobucci in the Supreme Court of Canada in R. v. Starr, [2000] 2 S.C.R. 144, as falling much closer to absolute certainty than a proof on a balance of probabilities.
¶ 50 Application of R. v. W.(D.): The Ontario Court of Appeal has recently held in R. v. Minuskin, [2003] O.J. No. 5253, that Courts do not have to slavishly follow or adhere to the formulation set out in R. v. W.D. Nevertheless, it is helpful in this case to be reminded of those principles.
¶ 51 Mr. Justice Cory in R. v. W.D., indicated that in cases where credibility is important, as is the case here, the trial judge is required to instruct the jury, or himself in a judge alone matter such as this, that the defendant must be acquitted if the defendant's evidence is believed. The defendant is also entitled to be acquitted even if his evidence is rejected or disbelieved by the trier of fact but a reasonable doubt as to the defendant's guilt after considering the defendant's evidence in the context of the evidence as a whole exists. Thirdly, even if the trier of fact is not left in doubt by the evidence of the accused, he must ask himself on the basis of the evidence which he does accept, if he is convinced on that evidence beyond a reasonable doubt, of the guilt of the accused.
¶ 52 Analysis: The Court must review the evidence in the context of the issues identified.
¶ 53 Credibility and Reliability: Resolution of the issue of credibility and reliability lie at the core to a resolution of both charges. Both the complainant [the complainant] and the defendant Mr. K. have given evidence that varies sharply as to the facts surrounding the allegation of sexual assault and threatening.
¶ 54 Courts are not equipped with special tools or blessed with unique understanding to make determinations as to credibility or reliability of witnesses. Rather, Courts must watch carefully and listen attentively to the testimony of witnesses and to the evidence otherwise presented. An assessment of the credibility and reliability of a witness requires an understanding of the totality of the evidence.
¶ 55 The ability of a witness to observe, record, and later retrieve evidence objectively, accurately and honestly, without bias, favour, or self-interest is vital. The measuring stick or bench mark is consistency. Firstly — Was the evidence of the witness internally consistent throughout the trial or were there inconsistencies and contradictions within that witness' own testimony? Secondly — Was the evidence of the witness externally consistent with the evidence given by other witnesses or were there inconsistencies and contradictions between that witness' evidence and the evidence of other witnesses? Thirdly — Was the evidence of the witness consistent with the probabilities of truth and reason or were there inconsistencies and contradictions between that witness testimony and the probability of truth and reason? Common sense and life experience comes into play. Were the inconsistencies and contradictions on matters that were significant or trivial? Were the inconsistencies or contradictions explained or did they remain unresolved?
¶ 56 If a witness' testimony is consistent internally, externally and with the probability of truth and reason the effect can repose confidence in that testimony and give it significant weight. The reverse is also true. A witness whose testimony is not consistent but is fraught with contradictions without satisfactory explanation or resolution will inspire little confidence and may be given little weight.
¶ 57 Consent: The notion of consent differs in relation to issues of actus reus and mens rea. Consent, or perhaps more accurately, the absence of consent is the third requirement of the actus reus of sexual assault. The Crown must prove the absence of consent beyond a reasonable doubt to establish the actus reus. If it established that the complainant actively participated in the sexual activity and thereby consented if there is a reasonable doubt as to the consent the actus reus has not been established (subject to section 265(3)). The issue of the complainant's active participation or reasonable doubt as to the issue of consent are matters of facts governed by the credibility and reliability of the witness' evidence.
¶ 58 Equally if the defendant held an honest but mistaken belief that the complainant was a willing participant and consented to the sexual activity, such an honest belief in consent will negate the mens rea.
¶ 59 Evidence — the Birthday Party: On June 26, 2004, [the complainant] had a birthday party for her daughter Sara at a home she shared with her boyfriend A.P. A number of invited guests — both children and adults — attended. The birthday party was held principally outside in the backyard. The adults who socialized consumed alcohol during the day. [The complainant]'s sister J. attended the party.
¶ 60 J. had a relationship with M.H. who also attended the party. M.H. brought along Mr. K., the defendant. [The complainant] claimed to be surprised that Mr. K. came to the party. [Her boyfriend] was not, however, surprised that Mr. K. came to the party. He said [the complainant]'s sister J. had told him that M.H. was coming to the party and that Mr. K. was coming with him.
¶ 61 [the complainant] claimed that, apart from the brief hello, she did not socialize or talk very much with Mr. K. She claimed that it was [her boyfriend] and not her who talked with Mr. K. mostly. [Her boyfriend] said that he did not particularly like Mr. K. and said very little to him. [Her boyfriend] said that he saw [the complainant] talking with Mr. K. in the afternoon and in the evening. He specifically recalled seeing the two of them together on the back porch in the evening talking. He could not hear their conversation and was not certain if they were whispering to each other. Through the day [her boyfriend] spoke to [the complainant] about Mr. K.'s attendance. He wanted Mr. K. to leave. After discussing this issue with [the complainant], he agreed that it might make a scene and — I infer somewhat relevantly — did not ask Mr. K. to leave. [Her boyfriend] did recall one conversation he had with Mr. K. Mr. K. had asked [her boyfriend] if he could use the washroom facilities in the house. [Her boyfriend] refused Mr. K.'s request. [Her boyfriend] told Mr. K. to urinate in the backyard by the bushes. Given the ongoing party with people in the backyard, Mr. K. declined.
¶ 62 Mr. K. arrived at the party with his friend M.H. Mr. K. described being cordially received. Apart from some brief exchange with [her boyfriend], Mr. K. had no discussions with [her boyfriend] except his request to use the washroom facilities which Mr. K. declined. Mr. K. did however talk with [the complainant]. They talked on the porch in the backyard. He described [the complainant] as very pleasant and friendly to him.
¶ 63 Assessment: The evidence is that [her boyfriend] did not like Mr. K. nor did he want Mr. K. at the house or at the party.
¶ 64 Mr. K. was less out spoken about his feelings toward [her boyfriend] but I can infer that he did not like the way [her boyfriend] treated him.
¶ 65 Both [her boyfriend] and Mr. K. gave evidence in one regard that is surprisingly similar. Both confirmed that [the complainant] was cordial — even friendly with Mr. K. This theme runs consistently through the evidence of both [her boyfriend] and Mr. K. Conversely [the complainant]'s evidence of having very little to do with Mr. K. stands in contradiction to the evidence of both Mr. K. and her own boyfriend A.P.
¶ 66 Why would [the complainant] want to leave the Court with the impression that it was [her boyfriend] who did most of the talking with Mr. K. when [her boyfriend]'s evidence contradicts this? Why would [her boyfriend] say that he saw [the complainant] on the back porch talking to Mr. K. in the evening — a fact confirmed by Mr. K. but not by [the complainant]?
¶ 67 On the totality of the evidence I conclude that [the complainant] was cordial and friendly with Mr. K. and did spend time talking and socializing with Mr. K. because she wanted to do so. I infer that it was [the complainant] who was instrumental in dissuading [her boyfriend] from asking Mr. K. to leave. I conclude that [the complainant] enjoyed her time at the party with Mr. K. and came to rather like him. [The complainant]'s subsequent conduct in inviting herself to go with Mr. K. to the store is confirmatory of this fact. I conclude that [the complainant] minimized her involvement with Mr. K. in an attempt to downplay her interest in him and in particular in an attempt to bolster her later accusation that he raped her.
¶ 68 The Trip to the Store: Shortly before 9:00 p.m., Mr. K. left the party to drive to a store to buy some cigarettes. The store was only a few minutes away from the residence. [The complainant] wanted some cigarettes as well and asked Mr. K. if she could go with him to the store. Mr. K. agreed. [Her boyfriend] wondered why [the complainant] would not walk to the store and why she needed to go with Mr. K. in his truck. Nevertheless Mr. K. and [the complainant] went together to the store.
¶ 69 At the store both Mr. K. and [the complainant] purchased cigarettes and left. Once back in the truck, Mr. K. told [the complainant] he had to urinate. Since [her boyfriend] had not permitted Mr. K. to use the washroom at the house ([the complainant] knew this), Mr. K. suggested he relieve himself at a location near Queker and Beaver. [The complainant] may have expressed surprise at trial about the proposal but agreed to go. Mr. K. then drove to the Queker and Beaver location where he relieved himself.
¶ 70 Assessment: Mr. K. wanted to go to the store to get cigarettes. He had no particular interest in taking anyone with him. As soon as [the complainant] became aware that Mr. K. was going to drive his truck to the store to get cigarettes, she wanted to go. Why?
¶ 71 [her boyfriend] asked [the complainant] why she wanted to go at all and if so why not go on foot since the store was close. Why ride with Mr. K. whom they had discussed and whom [her boyfriend] believed [the complainant] did not care for. Even more surprising however is [the complainant]'s evidence about Mr. K. At the trial, [the complainant] said she took a ride with Mr. K. because she trusted him. Yet in a statement to the police given shortly after, [the complainant] alleged that Mr. K. had raped her and she talked of Mr. K. having stalked her sister J. [The complainant]'s evidence is very conflicted.
¶ 72 I conclude that despite [her boyfriend]'s advice to [the complainant] not to accept a ride to the store from Mr. K. and despite information [the complainant] had regarding Mr. K. having stalked her sister J. — she was going to ride to the store with Mr. K. because she liked him.
¶ 73 The Sexual Activity — The Facts: [the complainant] testified that after Mr. K. relieved himself he wanted to talk about her sister J., he then started touching [the complainant] and eventually began to pull her pants down. [The complainant] insisted that she be driven home and tried to pull her pants up. [The complainant] testified that Mr. K. kept trying to pull her pants off and while he did not completely succeed he was able to pull them down sufficiently enough to touch her as she described: "in the private area — in the vagina and stuck his fingers in my bum and into my vagina".
¶ 74 [The complainant] said that Mr. K. rolled her over from back to stomach to back and tried to put his penis into her vagina. [The complainant] said that while she could not see Mr. K.'s penis make contact with her vagina he did not enter her vagina.
¶ 75 [The complainant] then described how Mr. K. pulled her out of the truck, pushed her onto her knees on the gravelled road, put his penis into her mouth, held her securely down and he said: "I want you ... And then proceeded to have me give him a blow job"
¶ 76 Eventually Mr. K. let go of [the complainant] and masturbated himself in the parking lot where he ejaculated. [The complainant] said she got into the truck.
¶ 77 During the entire sexual sequence described, in which [the complainant] said she did not consent, she continually insisted that Mr. K. drive her home in words: "I want to go home" and "I need to go home now."
¶ 78 Mr. K., once satisfied, re-entered the truck and began driving on Beaver back toward [the complainant]'s home.
¶ 79 [the complainant] described feeling gross.
¶ 80 Mr. K. testified that it was [the complainant] who wanted to talk about her difficulties and in particular the manner in which [her boyfriend] was always "putting her down" and "picking" on her. He testified that [the complainant] did not ask to leave. On the contrary, she asked Mr. K. to stay with her so they could talk. Mr. K. testified he told [the complainant] he felt sorry for her situation. [The complainant] asked for a hug. Mr. K. gave [the complainant] a hug and a kiss on her forehead. Mr. K. testified that one thing lead to another and then he and [the complainant] began embracing, kissing and touching each other in a sexual way. Mr. K. testified that: "Things started getting intimate. I touched her breasts kind of things she touched me — rubbing my penis. She told me she wanted to have sex. I told her I wanted her too."
¶ 81 Mr. K. described both his movements and [the complainant]'s movements in the truck. Mr. K. told [the complainant] he had to "move around to other side" so he got out of the truck and went around to the right side where he said: "Her and I proceeded to pick up where we left off'
¶ 82 Mr. K. testified that he asked [the complainant] if she was all right and wanted to continue. He said [the complainant] said "yes" and that she wanted to continue. By [the complainant]'s words and conduct Mr. K. understood the answer was yes. Mr. K. described [the complainant] asking him to help her pull down her pants. Mr. K. described [the complainant] being at least partly out of the truck at this time with her feet on the road outside, her hands on the seat, and facing into the truck. Mr. K. was outside the truck, with one hand on the door, one hand on the truck, and his pants around his ankles. Mr. K. said he was unable to have sexual intercourse. He recalled the conversation in which he said, "I just can't perform" and [the complainant]'s response was: "It's okay ... sometimes it happens to guys." Mr. K. described events which then followed: "She pushed herself off the seat — pulled up her pants and knelt down beside me and decided to give me oral sex. She told me what to do to make me feel better. I pulled away from her after a time and ejaculated beside the truck'.
¶ 83 Mr. K. testified that they each got into the truck, had a smoke, talked and left with Mr. K. driving back down Beaver.
¶ 84 Assessment: Notionally, either version of the events set out by [the complainant] and Mr. K. is capable of being believed.
¶ 85 In reviewing the evidence with care, however, a number of factors come to mind. Mr. K. is a very tall, large man, well muscled, and could easily over power and dominate [the complainant].
¶ 86 [The complainant] described being forcefully moved around by Mr. K., having her pants carefully pulled off, having been subjected to Mr. K. forcefully attempting to enter her, having been forcefully put to her knees on the gravel road, and held by the head while being required to perform fellatio upon Mr. K.
¶ 87 Despite all this force, there was no evidence of any injury to [the complainant] nor any marks upon her, nor any torn or even disrupted clothes. When [her boyfriend] saw her an hour later, he said she looked normal until when he confronted her about lying as to her whereabouts. The medical evidence tendered was similarly unremarkable. While confirmatory evidence is not required to establish a sexual assault, it is unusual and remarkable given the degree of force alleged by [the complainant] that there was not a single bit of circumstantial evidence that confirmed the sexual assault by Mr. K.
¶ 88 In the circumstance, I cannot reject the defendant's account of events nor do I. I am troubled by the complainant's version of the events as she described them.
¶ 89 The Return Trip: On the drive back to [the complainant]'s residence, Mr. K. and [the complainant] came upon a vehicle which was partly stuck in the ditch. Mr. K. spoke with the persons involved and said that he volunteered to stay until their friends arrived. Mr. K. testified that [the complainant] and he were there ten to fifteen minutes when [the complainant] insisted they leave remarking that if they didn't soon leave [her boyfriend] would "freak out". Mr. K. and [the complainant] left.
¶ 90 [The complainant]'s account of this situation is similar except that she said Mr. K. and she were there less than five minutes. [The complainant] had no discussion with the other persons in the truck.
¶ 91 Assessment: On the evidence of [the complainant], she had just been raped by Mr. K. and had been forced to perform sexual acts on him against her will. As Mr. K. was driving he stopped to speak to these distressed parties whose car was in the ditch. Common sense would suggest that this would be the opportunity for [the complainant] to get out of Mr. K.'s truck and quickly secure safety and protection from those other persons. But [the complainant] did not do so. [The complainant] did not even consider this, nor did she consider talking to the occupants of the car. Why was [the complainant] content to sit in the truck while Mr. K. talked? No good explanation arises in the evidence except that [the complainant] did not feel compelled to do so. Her absence in speaking to these persons or at least in doing something does not assist in resolving the unanswered question.
¶ 92 Apart from a difference of opinion regarding the amount of time Mr. K. and [the complainant] spent on the side of the road with the third parties, each agrees with the other's evidence.
¶ 93 Allegation of the Threat — Facts: Once home [the complainant] testified that Mr. K. dropped her off but not before telling her: "If you say anything — I'll hurt you and your daughter."
¶ 94 Mr. K. said nothing else. [The complainant] said nothing and Mr. K. left. Mr. K. testified that he parked in front of [the complainant]'s residence. He asked [the complainant] what she was going to tell her boyfriend to which she responded: "I'll take care of it — Don't worry about it." Mr. K. opened the door for [the complainant] and heard a male yelling "[the complainant]!" At this moment, [the complainant] got out of the truck closed the door, and said to Mr. K.: "Take care — See you later." Mr. K. then drove off.
¶ 95 Assessment: [The complainant]'s report to the police that night was recorded on a 911 tape call. That recording was tendered as evidence at trial. In that recording, the police specifically asked [the complainant] what if anything Mr. K. said to her when he dropped her off. [The complainant] said that Mr. K. said nothing. Yet, at trial, [the complainant] testified that Mr. K. threatened her and her daughter. Even if allowance could be made for emotional upset — however caused — it is difficult to understand how a parent would not recall that only an hour or minutes earlier someone threatened to harm one's child.
¶ 96 Equally so, it is difficult to understand how such a person would not recall that a threat was made. Yet, such is the case here. [The complainant]'s evidence regarding the allegation of a threat by Mr. K. given at trial is sharply contradicted by the evidence she gave on a 911 tape recorded call to the police the very night of the alleged incident.
¶ 97 The defendant testified and denied threatening the complainant or her daughter. There is nothing in the defendant's testimony or in the evidence as a whole that would cause me to reject the defendant's denial.
¶ 98 The Drop Off and the Lie — Facts: After leaving Mr. K.'s truck, [the complainant] began walking up the driveway to her house. [Her boyfriend] came out of the house yelling, screaming, and demanding to know where [the complainant] had been for so long.
¶ 99 [the complainant] told [her boyfriend] she had been visiting her sister J. and M.H. to see what they were up to. [The complainant] knew this was a lie, and explained she did so because [her boyfriend] was really mad and upset about the whole situation. Because of what she says Mr. K. said he would do if she told anyone, and because of [her boyfriend]'s anger and what he was capable of when angry, she lied. [The complainant] said: "I didn't want anything to happen." [Her boyfriend] confronted [the complainant], accusing her of lying and not telling the truth. [The complainant] did not respond to the accusations. Rather, [the complainant] went into the house, got her cell phone and keys, and walked up the street to a park where she sat on the swings and tried to compose herself.
¶ 100 Eventually [her boyfriend] called [the complainant]. [The complainant] told [her boyfriend] what had happened between Mr. K. and herself. [The complainant] testified that [her boyfriend] was very upset and called the police. [The complainant] returned home and spoke to the police. [The complainant] was taken to the hospital and examined by the hospital staff using a rape kit. Later the next day, [the complainant] gave a video statement to the police.
¶ 101 The Assessment: Upon her return home [the complainant] lied to [her boyfriend] about her whereabouts over the previous hour. She told [her boyfriend] that she had been at her sister J.'s. She hoped to get away with the lie because disclosing that she had been involved in sexual contact with Mr. K., albeit without her consent, would only trigger the consequences of Mr. K.'s threat. However, [the complainant] did not know that [her boyfriend] had already called J. and that he knew that [the complainant] had not been at J.'s residence.
¶ 102 There are two significant concerns. The first is that it was only after [her boyfriend] caught [the complainant] in the lie that he saw any reaction by [the complainant]. Otherwise, according to [her boyfriend], [the complainant] looked fine. The second is that once the lie was spent and could no longer be sustained, there was nothing to lose and everything to gain by [the complainant] telling [her boyfriend] the truth. Instead [the complainant] said nothing. [The complainant] entered the house, took her cell phone, and left. It is only after she had composed herself later that evening that [the complainant] called and reported that the defendant had raped her. These concerns, which reflect on [the complainant]'s reliability, are not resolved on the evidence.
¶ 103 Summary: Both the complainant, [the complainant], and the defendant, Mr. K., have testified. They have given very different evidence regarding the facts and circumstances surrounding the charges of sexual assault and threatening. My task is not to determine which of two competing versions of the events I prefer and then make a decision on that determination. Even if I were to accept the complainant's evidence, I cannot reject the defendant's evidence simply on the basis that it is illogical to conclude that two competing versions of events can remain in this unrecorded state. My task is to determine whether the crown has proven every constituent relevant of the offences of sexual assault and threatening beyond a reasonable doubt on evidence that is consistent, convincing, and manifestly reliable.
¶ 104 Conclusion — Sexual Assault: have considered all the evidence, the law and the submission of counsel. In assessing the credibility and reliability of the complaint, I find that she was a willing participant and consented to engage in sexual activity with the defendant. I reject her evidence to the contrary as incredible and unreliable, as I have defined those terms.
¶ 105 The prosecution has failed to prove the absence of consent beyond a reasonable doubt, and, therefore, has at a minimum failed to prove the actus reus of the offence of sexual assault.
¶ 106 In assessing the credibility and reliability of the defendant, I find that he was an honest, truthful witness. I find that the defendant had an honest belief which was not mistaken, that the complainant was a willing participant, and consented to engage in sexual activity with him. Even if the defendant was mistaken — and I have found that he was not — such a mistake was an honest belief that the complainant consented to the sexual activity with the defendant. The prosecution has failed to establish the mens rea of the offence of sexual assault.
¶ 107 Threatening: I have considered all the evidence, the law, and the submissions of counsel. In assessing the credibility and reliability of the complainant, I find, given her inconsistencies in particular between her evidence and the information on the 911 tapes, that her evidence is unreliable as to whether the defendant threatened her.
¶ 108 In assessing the credibility and reliability of the defendant, I find he was a truthful witness whose evidence of denying any threat made to the complainant I accept.
¶ 109 The prosecution has failed to establish proof of the offence beyond a reasonable doubt.
¶ 110 Ruling: I find the defendant: 1. Not guilty on the charge of sexual assault. 2. Not guilty on the charge of threatening.
¶ 111 Both charges against the defendant are dismissed.
