Youth Justice COURT OF NOVA SCOTIA
Citation: R v. M.M., 2021 NSPC 27
Date: 20210525
Docket: 8330438
Registry: Truro
Between:
Her Majesty the Queen
v.
M.M.
Restriction on Publication: 486.4 CC
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Judge: |
The Honourable Judge Alain Bégin, |
|
Heard: |
March 11, 2021, in Truro, Nova Scotia |
|
Decision |
May 25, 2021 |
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Charge: |
271 CC |
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Counsel: |
Thomas Kayter, for the Crown Attorney David Mahoney, for the Defendant |
Restrictions on Publication:
Section 486.4 CC: Bans ordered under this Section direct that any information that will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. No end date for the Ban stipulated in this Section.
Section 110(1) YCJA. Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
By the Court:
[1] M.M. was charged with a sexual assault on J.D. on March 4, 2019. There is no dispute or denial that sexual intercourse occurred. The issue is whether J.D. consented.
[2] This was a criminal trial in Youth Justice Court. The Crown has the onus of establishing beyond a reasonable doubt that M.M. committed the offence with which he is charged. The onus of proof never switches from the Crown to the accused.
There is a Publication Ban in this matter protecting the identity of the victim, J.D.
[3] Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt. Nor is it an imaginary or frivolous doubt. In R. v. Starr, [2000] 2 SCR 144, the Supreme Court of Canada held that this burden of proof lies much closer to absolute certainty than to a balance of probabilities.
[4] The Supreme Court of Canada in R. v. Lifchus, [1997] 3 SCR 320, noted at paragraph 39:
39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think that it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on 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 on 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.
[5] It is settled law that an accused person bears no burden to explain why their accuser made the allegations against them. Reasonable doubt is based on reason and common sense. It is logically derived from the evidence or the absence of evidence.
[6] In R. v. W.D., [1991] 1 SCR 742, the Supreme Court of Canada indicated the manner in which a trial court should assess the evidence of an accused who testifies. The accused’s evidence is treated in a way different from other evidence. I must consider whether I believe the accused’s evidence, and if so, then he is entitled to be acquitted on a charge where I believe his denial. Even where I do not believe the accused’s evidence, if it serves to raise a reasonable doubt in relation to his guilt for any of the occurrences, then he is entitled to the benefit of the doubt and he is entitled to be acquitted of the charges relating to that occurrence.
[7] Even where I do not believe the accused, and his evidence fails to raise doubt, I must still consider whether on the evidence I do accept, if the Crown has proved the essential elements of each offence beyond a reasonable doubt. I may only convict the accused of offences proven beyond a reasonable doubt. Proof beyond a reasonable doubt also applies to issues of credibility.
[8] Finally, if I am left in doubt where I don’t know who or what to believe, then I am by definition in doubt and the accused is entitled to the benefit of the doubt. Having said that, however, the accused’s evidence is not considered in isolation. It is part of the whole of the evidence that I have heard and must consider.
[9] A criminal trial is not a credibility contest.
[10] On the issue of credibility I am guided by the case of Faryna v. Chorny, [1952] 2 DLR 34, where the Court held that the test for credibility is whether the witness’s account is consistent with the probabilities that surrounded currently existing conditions. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. In short, the real test of the story of the witness in such a case must be how it relates and compares with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[11] Or as stated by our Court of Appeal in R. v. D.D.S., [2006] NSCA 34, “Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a …criminal trial?”
[12] With respect to the demeanour of witnesses, I am mindful of the cautious approach that I must take in considering the demeanour of witnesses as they testify. There are a multitude of variables that could explain or contribute to a witness’ demeanour while testifying. As noted in D.D.S., demeanour can be taken into account by a trier of fact when testing the evidence but standing alone it is hardly determinative.
[13] Credibility and reliability are different. Credibility has to do with a witness’s veracity, whereas reliability has to do with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.
[14] Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence. Reliability relates to the worth of the item of evidence, whereas credibility relates to the sincerity of the witness. A witness may be truthful in testifying, but may, however, be honestly mistaken.
[15] The Ontario Court of Appeal in R. v. G(M), (1994), 73 OAC 356, stated at paragraph 27:
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… 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 on the testimony of a witness who has demonstrated carelessness with the truth.”
And at paragraph 28, “…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…….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 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…
[16] A trier of fact is entitled to believe all, some, or none of a witness’ testimony. I am entitled to accept parts of a witness’ evidence and reject other parts. Similarly, I can afford different weight to different parts of the evidence that I have accepted.
[18] It is important to remind myself of my role, and duty, as the trial judge. The Nova Scotia Court of Appeal in R. v. Brown, [1994] NSJ 269 (NSCA), confirmed at paragraph 17 that:
…There is a danger that the Court asked itself the wrong question: that is which story was correct, rather than whether the Crown proved its case beyond a reasonable doubt.
[19] And at paragraph 18 of that same Brown case the Nova Scotia Court of Appeal referred to paragraph 35 of the BC Court of Appeal case R. v. K.(V.), 1991 CanLII 5761 (BCCA), which stated:
I have already alluded to the danger, in a case where the evidence consists primarily of the allegations of a Complainant and the denial of the accused, that the trier of fact will see the issue as one of deciding whom to believe. Earlier in the judgement I noted the gender-related stereotypical thinking that led to assumptions about the credibility of Complainants in sexual assault cases which we have at long last discarded as totally inappropriate. It is important to ensure that they are not replaced by an equally pernicious set of assumptions about the believability of Complainants which would have the effect of shifting the burden of proof to those accused of such crimes.
[20] In the case of R. v. Mah, 2002 NSCA 99, the Court stated:
The W.D. principle is not a magic incantation which trial judges must mouth to avoid appellate intervention. Rather, W.D. describes how the assessment of credibility related to the issue of reasonable doubt. What the judge must not do is simply choose between alternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at a criminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limited one of deciding whether the essential elements of the charge have been proved beyond reasonable doubt…the ultimate issue is not whether the judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial is not credibility but reasonable doubt.
[21] The Mah case makes it clear that my function as a judge at a criminal trial is not to attempt to resolve the broad question of what happened. My function is more limited to having to decide whether the essential elements of the charges against the accused have been proved beyond a reasonable doubt. The onus is always on the Crown to prove the elements of the offences beyond a reasonable doubt. The onus is not on the Defence to disprove anything.
The Crown’s Burden for a s. 271 – Sexual Assault
[22] To find M.M. guilty of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that M.M. intentionally applied force to J.D.;
ii. that J.D. did not consent to the force that M.M. intentionally applied.
iii. that M.M. knew that J.D. did not consent to the force that M.M. intentionally applied; and
iv. that the force that M.M. intentionally applied took place in circumstances of a sexual nature.
[23] If Crown counsel has not satisfied myself beyond a reasonable doubt of each of these essential elements, I must find M.M. not guilty of sexual assault. If Crown counsel has satisfied myself beyond a reasonable doubt of each of these essential elements, I must find M.M. guilty of sexual assault.
[24] As noted, there is no dispute that sexual intercourse occurred. The issue in dispute is whether J.D. consented. The claim by J.D. is that she was asleep when the intercourse commenced, and that she awoke to M.M. having sexual intercourse with her.
Consent
[25] Consent to sexual activity cannot be considered in the abstract. It must be linked to the sexual activity in question that encompasses the specific physical act, the nature of the sexual activity, and the identity of the partner. Agreement to one form of penetration is not agreement to any and all forms of penetration, and agreement to sexual touching on one part is not agreement to all sexual touching (R. v. J.A., 2011 SCC 28, R. v. Barton, 2019 SCC 33).
[27] A person must be able to consent continually to the sexual activity. A person who is asleep, or unconscious, is incapable of consenting to sexual activity. Consent must be contemporaneous and cannot be given in advance for touching that occurs when the person lacks capacity (R. v. J.A.).
[28] With regards to claims of threats or fear, the victim’s fear must be assessed by the court using a subjective standard, and need not be reasonable, nor must it be communicated to the accused. The credibility of the victim’s assertion of having submitted or participated out of fear must be assessed by the trier of fact considering all the evidence.
[29] For the purposes of sections 271, 272 and 273 of the Criminal Code, section 273.1 states that there is no consent if the complainant is unconscious, or if the complainant is incapable of consenting to the activity for any reason other than being unconscious.
[30] The notion of incapacity stems from the principle that capacity to consent requires conscious consent of an operating mind at the time the sexual activity occurs. An operating mind requires the ability to contemporaneously evaluate each and every sexual act committed. Capacity to consent requires the ability to appreciate the nature of the act with an understanding that one can consent, decline, or continue in the sexual activity.
[31] Since a victim needs a conscious, operating mind to consent, a condition of sleep, or unconsciousness, would logically negate capacity, but a lack of capacity is not limited to an unconscious victim.
[32] The key is whether the victim is capable of granting, revoking, or withholding consent. Whether the victim had the capability to do so is a question of fact.
Mistaken Belief in Consent
[34] The only defence that might remain is a mistaken belief that the victim was conscious and consenting at the time that the sexual activity occurred. If the accused makes no attempt to establish capacity, the defence of mistaken belief will not be available.
[35] The victim’s credibility and reliability are central to her evidence that she did not consent to sexual activity.
[36] A mistaken belief in consent is not a defence in the traditional sense, but it is actually a negation of mens rea. It is a mistake defence. The accused acknowledges that the victim did not consent but he claims that he honestly, but mistakenly, believed that she was consenting. In this circumstance, the actus rea of the offence is established, but the mens rea is not (Ewanchuk).
[38] The defence of mistaken belief must have an air of reality. An air of reality defence will be found where there is evidence on the record upon which a properly instructed jury could acquit. The trial judge must consider whether there is an air of reality to the defence based on the circumstances of the case. The evidence must not amount to a bare assertion by the accused, but rather, there must be some support for the defence in the whole of the evidence or in the circumstances of the case (R. v. Esau, [1977] 2 SCR 777). The Court has to consider the totality of the evidence in making the determination.
[39] The evidence must show that the accused believed that the victim communicated consent to engage in the sexual activity in question. The Court must reason through any apparent inconsistencies or problems with the evidence of the victim.
[40] Where the victim is asleep, the accused cannot rely on non-verbal cues on the suspicion that the victim might be awake (R. v. Reichmuth, 2007 BCPC 62).
[41] The existence or non-existence of reasonable grounds for the accused’s belief is merely relevant evidence to be weighed by the trier of fact in determining whether the accused honestly held the mistaken belief being asserted.
[42] However, the defence imports a standard of reasonableness by requiring the accused to take “reasonable steps” to ascertain whether the victim is consenting. There will only be an “air of reality” to the defence, and therefore it will only be considered by the trier of fact, if the accused took reasonable steps in the circumstances known to him at the time to ascertain consent.
[43] It is not sufficient for the accused to honestly believe that the victim consented. The accused must also take reasonable steps to ascertain consent and must believe that the victim communicated consent to engage in the sexual activity in question. There will be no air of reality to a claim of honest but mistaken belief in communicated consent if the court finds that no reasonable steps were taken in the circumstances known to the accused. Reliance on silence, passivity, or ambiguous conduct would not amount to reasonable steps.
[44] Testing the waters, especially with semi-conscious complainants, is not considered as taking reasonable steps (R. v. Dippel, 2011 ABCA 129).
[45] An accused cannot be held to have taken reasonable steps if it is shown that the victim was unconscious (R. v. Cornejo, (2003), 181 CCC (3d) 206 (ONCA)).
The Evidence
[46] I have reviewed all the evidence that was presented at the trial, reviewed the exhibits, and re-listened to portions of the trial. It is not my function as a trial judge when rendering a decision to act as a court reporter and recite all the evidence that I have heard and considered. It suffices for me to highlight the pertinent parts. Further, any quotes that I attribute to a witness may not be an exact quote, but paraphrases and captures the essence of their testimony.
Nancy
[47] Nancy is J.D.’s mother. M.M. reached out to her directly to see if he could stay over for the night as he was having family issues and she agrees although she had previously told J.D. that he could not. J.D.’s friend Lily was also there for the night. M.M. and Lily had both stayed over previously.
[48] It was a quiet evening and there was no consumption of alcohol by anyone that evening. Bedtime would have been around 11 p.m. as there was school the following day.
[49] Nancy’s bedroom is upstairs, and J.D.’s bedroom is downstairs, along with a guest room. It was Nancy’s expectation that M.M. would stay in the guest room, and Lily would stay with J.D. in her room.
[50] The following morning the only thing that Nancy noticed was that J.D. appeared to be lagging, and that she was very quiet and distant whereas she was usually very happy. Nancy only learned of the alleged sexual assault when she was contacted by RCMP Cst. MacDonald, who was an acquaintance of the family.
[51] To the best of her knowledge, M.M. and J.D. were simply friends, and not in a relationship.
Cross-examination:
[52] On cross-examination, Nancy disagreed with the suggestion that J.D. and Lily slept on the mattress on the rec room floor, and that M.M. was sleeping beside them on the rec room couch. I find from the other evidence at the trial that she was mistaken on this point. Nothing of significance turns on this mistake as it has no bearing on the interactions on the mattress between M.M. and J.D.
Lily
[53] Lily has been best friends with J.D. since grade 3. On the day in question J.D. wanted her to sleep over as M.M. was going to be staying there and J.D. wanted someone else to be there. There was no consumption of any drugs or alcohol by any of them.
[54] The three of them hung out downstairs in the rec room, listening to music.
[55] To the best of her knowledge, M.M. and J.D. were just friends, and there was no romance between them.
[56] She and J.D. slept on the mattress on the floor in the rec room, and M.M. was on the couch that was approximately one metre from the mattress.
[57] She and J.D. wake up the next morning and neither her nor J.D. want to wake up M.M., but J.D. does end up doing so. Everyone woke up wearing the same clothes that they had gone to sleep wearing.
[58] That morning J.D. looked sad and unwell, whereas J.D. is usually fairly happy. Lily does not discuss this change in demeanour with J.D.
[59] J.D.’s mother drives the three of them to school. Lily does not recall any interactions between J.D. and M.M.
Cross-examination:
[60] When Lily fell asleep, both J.D. and M.M. were on their phones. She has no idea with whom they were communicating on their phones.
[61] Lily is a heavy sleeper.
[62] Lily did not see any tension or awkwardness between J.D. and M.M. in the morning.
[63] Lily did not see nor hear any sexual contact between J.D. and M.M. Lily only hears about sex between J.D. and M.M. approximately one week later. The revelation came as a surprise to Lily.
J.D.
[64] J.D. testified that M.M. was one of her close friends, and that they were “really close friends.” No drugs or alcohol were consumed by anyone.
[65] She and Lily and M.M. were hanging out watching television on their phones. She and Lily slept on the mattress on the rec room floor, and M.M. was on the rec room couch. The couch was 1-2 feet away from the mattress. J.D. would have been further from the couch than Lily was.
[66] J.D. is not sure what time she wakes up, but she wakes up to “M.M. having sex with me from behind” with his penis in her vagina. At the time J.D. was on her side facing Lily. Her pants were below her knees. It lasted a couple of minutes. The sex ends as “he just got up and went to the bathroom.”
[67] J.D. states that “I just laid there and went back to sleep.” J.D. never said anything to M.M., and she never moved.
[68] J.D. is clear that she did not consent to any of the sex. J.D. has no idea if M.M. was wearing a condom.
[69] J.D. eventually falls asleep. She is awoken in the middle of the night with M.M. touching her arm and trying to wake her up. M.M. leans in and kisses her, and she kisses him back. M.M. then gets up and goes to the couch. She goes back to sleep.
[70] J.D. then wakes up a couple of hours before she is supposed to, and she finds that her pants are at her knees.
[71] J.D. indicates that the next morning she did not have any interactions with M.M., and that she did not have any discussions with her mother or Lily. She “wasn’t saying much” that morning.
[72] J.D. discloses what happened a couple of days later.
[73] Exhibit 1 is a series of texts between J.D. and M.M. about one month after the date in question. The texts arose as J.D.’s brother went to their school looking for M.M. to beat him up as he had heard the allegations of what M.M. had done to J.D.
[74] Parts of the text exchange (emphasis added) has M.M. saying to J.D.: “I just want to say I’m sorry for everything if I had tbh I didn’t know you were sleeping and I didn’t do it just bc I wanted to have sex. It was because I love you.”
[75] M.M. also texted “I thought u felt the same way so my head got the best of me. I wanted to be with you so bad it made me the way I was that night. And I would never try to rape you.”
[76] M.M. also texted to J.D. “I just want to say I’m very sorry.”
[77] And finally, M.M. texted to J.D. “I just really hope you know I didn’t mean to hurt you in any way. I just had the wrong idea.”
[78] J.D. is adamant that she and M.M. were not texting each other before going to sleep stating, “It is not something that happened that night.”
Cross-Examination
[79] In her cross-examination, J.D. testified that her relationship with M.M. had not progressed beyond a friendship.
[80] J.D. does not recall texting with M.M. about going into the other room, although it could have happened. J.D. is a heavy sleeper, and she does not wake up easily.
[81] J.D. woke up to M.M. having his penis in her vagina. This statement would mean that M.M. would have initially put his penis in J.D.’s vagina while she was asleep. If this is correct, J.D. could not legally consent to that sexual intercourse that occurred prior to her waking up.
[82] M.M. was on the mattress beside J.D. and she cannot recall where M.M.’s hands were.
[83] J.D. denies initially rubbing M.M.’s penis with her feet. She denies that M.M. then pulls her pants down and starts rubbing her bottom. She further denies that M.M. then pulls down her pants and she continues to rub his penis. She further denies that she is moaning and enjoying the sexual advances by M.M.
[84] J.D. does not recall M.M.’s penis going in her vagina.
[85] Once she is awake, J.D. moves away from M.M., and he stops. She does not make any sounds. M.M. gets up and goes to the bathroom
[86] J.D. states that “I didn’t know what to do.” And when asked why she didn’t wake up Lily she responded, “I was scared and embarrassed.”
[87] J.D. stated that she did not consent to the sexual intercourse with M.M.
[88] J.D. falls back asleep and she wakes up to M.M. tugging on her arm to wake her up. M.M. leans over her and kisses her and she kisses him in return. The kiss did not last very long, and then M.M. goes back to the couch.
[89] J.D. denies she kissed M.M. to encourage more sexual activity, but rather she did so as she thought that this would make M.M. stop. She stated, “I was kissing him so I wouldn’t have to say anything to him.”
[90] J.D. denies that M.M. laid beside her for a while on the mattress. J.D. also stated that there was no talking during the sexual intercourse.
[91] When J.D. was asked why she didn’t just say “no” she stated that “it would have been awkward.” This question also assumes that J.D. would have been awake when the intercourse started, which J.D. denies.
[92] J.D. was asked why she didn’t wake up Lily and she responded that it would have made a bigger scene as Lily would have physically gone after M.M.
[93] With regards to the text exchanges with M.M., and in particular the comment by J.D. stating “they act like I am the victim” she stated that that comment meant that everyone was putting the blame on her for what had happened.
[94] J.D. did not respond to M.M.’s final text in the exhibit where M.M. asked her “Were you ever asleep J at any point” as she was at the police station talking to the police about the sexual assault, and that she “didn’t think that she needed to talk to him anymore.”
[95] J.D. agreed that nowhere in the text exchanges did she state that she did not want to have sex. But equally important, nowhere in the texts does J.D. say that she did want to have sex with M.M. and that she did so willingly.
Re-Direct Examination
[96] On re-direct examination, J.D. responded to the suggestion that she was rubbing M.M.’s penis with her feet with, “It did not happen when I was awake.”
[97] I found J.D. to be a credible and reliable witness.
M.M.
[98] M.M. testified that contrary to the assertions by Lily, J.D., and J.D’s mother, that he and J.D. were in fact in a romantic relationship.
[99] M.M. stated that he and J.D. were texting each other, and that he had asked J.D. if she wanted to go with him to the guest room, but J.D. says no as she did not want to wake up Lily “so perhaps another time.”
[100] M.M. testifies that he wants to cuddle with J.D. so he lies on the end of the mattress, and that J.D. starts to rub his penis with her feet and stated that because of this “I believed that she wanted to do something.”
[101] M.M. places his hand on J.D.’s bum, and he then tugs on her pajama pants. There is no reaction from J.D. so he places his fingers on her vagina and J.D.’s breathing changes.
[102] M.M. moves up beside J.D. and she moves over towards Lily to make room for him on the Queen size mattress that also holds Lily. J.D. is laying on her right side. M.M. pulls on J.D.’s thong and he then takes out his penis and rubs it against J.D.’s vagina for 20 to 30 seconds.
[103] M.M. then puts his penis into J.D.’s vagina and she takes a deep breath. M.M. has intercourse with J.D. for 3 to 4 minutes and then pulls his penis out. J.D. is making muffling sounds. M.M. ejaculates into his hand.
[104] M.M. and J.D. look into each other’s eyes, and then kiss for 5 to 10 seconds. M.M. states “I thought that she was enjoying it” and that at no point did he think that she was asleep.
[105] M.M. states that J.D. “initiated the sex.” What is troubling about this statement is that M.M. had just indicated in his evidence that J.D. had just stated that she did not want to go to the guest room to have sex with M.M. as she was afraid to wake up Lily, but he now states that J.D. almost immediately initiated the sex with M.M. on the mattress right beside Lily where there was a much greater risk of waking Lily. This is not a very credible fact scenario being proposed by M.M.
[106] M.M. also stated that there was no conversation with J.D. as he did not want to risk waking up Lily. However, M.M. was willing to have sex with J.D. on the same Queen size mattress and this caused him no concerns about waking Lily? This is not a very credible fact scenario being proposed by M.M.
[107] Throughout the scenario presented by M.M., he never has a conversation with J.D. about having sex on the mattress. Assumptions are clearly made by M.M. about J.D.’s willingness, but no conversation about sex is had between him and J.D. This lack of conversation about having sex on the mattress with J.D. would occur very shortly after J.D. would have told M.M. that she would not even have sex with him in an adjoining room for fear of waking Lily. This is not a very credible fact scenario being proposed by M.M.
[108] M.M. then states in his evidence that he “wanted to talk to J.D. about progressing the relationship.” This comment by M.M. completely contradicts his earlier evidence that he and J.D. were romantically involved.
[109] M.M. says that he apologized in the Exhibit 1 text exchange with J.D. as he had thought that he had hurt his best friend.
Cross-Examination
[110] On cross-examination, M.M. confirmed his belief that he was in a romantic relationship with J.D., but he could not explain how neither Lily, nor J.D.’s mother knew about it.
[111] While describing the events on the mattress, M.M. states that he could see J.D.’s eyes were open. This is contrary to the evidence that it was very dark in the room.
[112] M.M. confirms that there is no verbal communication with J.D.
[113] M.M. confirms some of the comments that he made in a group chat. One of his comments was “I guess that I was fingering her when she was asleep.” A more troubling comment for M.M. is when he states in the group chat, “I don’t know if she was [asleep], the room was dark.”
Summary/Decision
[114] I noted at the start that I was guided by the case of R. v. W.D. I must consider whether I believe M.M.’s evidence, and if so, then he is entitled to be acquitted on the charges where I believe his denial. I do not believe the evidence of M.M. so I must turn to the second stage of R. v. W.D.
[115] Even where I do not believe M.M.’s evidence, if it serves to raise a reasonable doubt in relation to his guilt for the occurrence, then he is entitled to the benefit of the doubt and he is entitled to be acquitted of the charges relating to that occurrence. The evidence by M.M. did not raise a reasonable doubt, for the following reasons:
1. There is no dispute that sexual intercourse occurred. The issue in dispute is whether J.D. consented. The claim by J.D. is that she was asleep when the intercourse commenced, and that she awoke to M.M. having sexual intercourse with her. Any sexual intercourse by M.M. with J.D. prior to her waking up could not be by consent, regardless of how J.D. reacted once she awoke. I find as fact that sexual intercourse commenced while J.D. was asleep.
2. Consent cannot be considered in the abstract. It must be linked to the sexual activity in question that encompasses the specific physical act, the nature of the sexual activity, and the identity of the partner. Being asleep, it was legally impossible for J.D. to consent to any sexual acts by M.M. with her. This would specifically include his touching of her vagina with his hand, rubbing his penis on her vagina, and his initial penetration of her vagina with his penis.
3. Lack of resistance does not equate to consent. Consent to engage in sexual activity requires some positive communication in the form of words or gestures from the complainant that she is consenting to the sexual activity in issue. It is an error to assume that unless and until a person says no, she has implicitly given consent to any, and all, sexual activity. A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law and provides no defence. M.M. relied on passivity by J.D. and this is incomprehensible seeing as shortly before the sexual activity, that M.M. indicates that J.D. had refused sexual activity in an adjoining room. Yet, M.M. states that J.D. then agreed, and initiated, to have sex with him on the same mattress as Lily. And M.M. indicates that this consent was based on “I believed that she wanted to do something.”
4. A person must be able to consent continually to the sexual activity. A person who is asleep is incapable of consenting to sexual activity. Consent must be contemporaneous and cannot be given in advance for touching that occurs when the person lacks capacity. I have already found as fact that J.D. was asleep when the sexual activity commenced.
5. Capacity to consent requires the ability to appreciate the nature of the act with an understanding that one can consent, decline, or continue in the sexual activity. As J.D. was asleep when the sexual contact commenced, she was unable to consent.
6. Since a victim needs a conscious, operating mind to consent, a condition of sleep would logically negate capacity, but a lack of capacity is not limited to an unconscious victim. The key is whether the victim is capable of granting, revoking, or withholding consent. Whether the victim had the capability to do so is a question of fact. I find as fact that J.D. was asleep when the sexual contact was commenced by M.M. so J.D. would have been incapable of granting, revoking or withholding consent.
7. The burden lies on the accused to take reasonable steps to determine whether the victim is consenting. There is no burden on the victim to object. In submissions, M.M. indicated that J.D. never said no, so she must have consented. That is not the legal standard. There is also the text message by M.M. to J.D. that stated “if I had tbh I didn’t know you were sleeping, and I didn’t do it just bc I wanted to have sex” that confirms that M.M. took no steps to ensure capacity to consent, but just assumed that J.D. was awake. As well, M.M.’s group chat comments confirm a lack of reasonable steps taken by him when he stated “I don’t know if she was [asleep], the room was dark.”
8. The only defence that might remain for M.M. is an honest but mistaken belief that the J.D. was conscious and consenting at the time that the sexual activity occurred. If M.M. makes no attempt to establish capacity, the defence of mistaken belief will not be available. By his own testimony, M.M. “believed” that J.D. was consenting, but he never spoke with J.D. about having sex on the mattress beside Lily. M.M. also believed that J.D. was consenting because her breathing had changed when he started to sexually touch her. Again, that is not the legal standard to establish consent.
9. A mistaken belief in consent is not a defence in the traditional sense but it is actually a negation of mens rea. It is a mistake defence. The accused acknowledges that that victim did not consent, but he claims that he honestly, but mistakenly, believed that she was consenting. In this circumstance, the actus rea of the offence is established, but the mens rea is not.
10. The accused must believe that the complainant had communicated consent to the sexual act in question through express words or unambiguous affirmative conduct. Any other belief, however honestly held, is not a defence. Speculation by the accused about what was going on in the complainant’s mind affords no defence, nor does an accused’s belief that silence, passivity, or ambiguous conduct constitutes consent. We have speculation by M.M. that he “believed” that J.D. was consenting, and that he believed that J.D. was enjoying it. But there is no unambiguous affirmative conduct. I accept the evidence of J.D. that she did not rub M.M.’s penis with her foot. Speculation by M.M. is confirmed in the text by M.M. to J.D. where he stated “tbh I didn’t know you were sleeping and I didn’t do it just bc I wanted to have sex.” Speculation by M.M. of capacity to consent is also confirmed by the text by M.M. to J.D. that stated “I just had the wrong idea.”
11. The defence of mistaken belief must have an “air of reality.” I must consider whether there is an air of reality to the defence based on the circumstances of the case. The evidence must not amount to a bare assertion by M.M., but rather, there must be some support for the defence in the whole of the evidence or in the circumstances of the case. I have to consider the totality of the evidence in making the determination. Where the “air of reality” fails for M.M. is when I consider the following evidence:
a. The very troubling comment by M.M. in the group chat, “I don’t know if she was [asleep], the room was dark.”
b. When M.M. stated that he “wanted to talk to J.D. about progressing the relationship.” Yet he had previously testified in his earlier evidence that he and J.D. were romantically involved.
c. When M.M. stated that J.D. “initiated the sex” but M.M. had just indicated in his evidence that J.D. had just told him that she did not want to go to the guest room to have sex with M.M. as she was afraid to wake up Lily, but he then claims that J.D. almost immediately initiated the sex with M.M. on the mattress right beside Lily where there was a much greater risk of waking Lily.
d. When M.M. stated that there was no conversation with J.D. as he did not want to risk waking up Lily. Yet, M.M. was willing to have sex with J.D. on the same Queen size mattress and this caused him no concerns about waking Lily?
e. Throughout the scenario presented by M.M., he never has a conversation with J.D. about having sex on the mattress. Assumptions are clearly made by M.M. about J.D.’s willingness, but no conversation about sex occurs between him and J.D. This lack of conversation about having sex on the mattress with J.D. would occur very shortly after J.D. would have allegedly told M.M. that she would not even have sex with him in an adjoining room.
f. The texts by M.M. to J.D. where he states:
i. “I wanted to be with you so bad it made me the way I was that night.”
ii. “tbh I didn’t know you were sleeping and I didn’t do it just bc I wanted to have sex.”
iii. “I just had the wrong idea.”
12. Where the victim is asleep, the accused cannot rely on non-verbal cues on the suspicion that the victim might be awake.
13. The defence imports a standard of reasonableness by requiring the accused to take “reasonable steps” to ascertain whether the victim is consenting. There will only be an “air of reality” to the defence and therefore it will only be considered by the trier of fact if the accused took reasonable steps in the circumstances known to him at the time to ascertain consent. I have just noted the lack of reasonable steps taken by M.M. to confirm consent or the capacity to consent, as well as the reasons for a lack of an “air of reality” to the mistaken belief defence.
14. It is not sufficient for the accused to honestly believe that the victim consented, as M.M. claims. The accused must also take reasonable steps to ascertain consent and must believe that the victim communicated consent to engage in the sexual activity in question. There will be no air of reality to a claim of honest but mistaken belief in communicated consent if the court finds that no reasonable steps were taken in the circumstances known to the accused. Reliance on silence, passivity, or ambiguous conduct would not amount to reasonable steps. Testing the waters, especially with semi-conscious complainants, is not considered as taking reasonable steps. The evidence is clear that M.M. took no reasonable steps to confirm consent by J.D. but he just assumed or believed that J.D. was consenting, that M.M. relied on silence and passivity or ambiguous conduct by J.D., and as a result there is no air of reality, or proper legal foundation, to his claim of an honest but mistaken belief.
[116] Further, applying the tests from Faryna v. Chorny and R. v. D.D.S., M.M.’s evidence was not consistent with the probabilities that surrounded currently existing conditions, it was not a story that a practical and informed person would readily recognize as reasonable in that place and in those conditions, and it did not “stack up” under the painstaking, careful and repeated testing of the evidence.
[117] Now turning to the third part of R. v. W.D., in consideration of the applicable legal tests, and in consideration of all of the evidence before me, as I am not left in doubt as to the guilt of M.M., I must find him guilty of the sexual assault of J.D. contrary to s. 271 as charged.
Judge Alain Bégin, JPC