Sexual Assault – Example #5

Case Name:

R. v. S.

Between

Her Majesty the Queen, and

D.S.

[2010] O.J. No. 6259

Ontario Court of Justice

 Toronto, Ontario

R.D. Boivin J.

April 9, 2010.

(29 paras.)

Counsel:

D. O’Connor, Esq. Counsel for the Crown.

D. Brown, Esq. Counsel for the Accused.

REASONS FOR JUDGMENT

1     R.D. BOIVIN J. (orally):– On the 13th of December 2008, the defendant had had the complainant babysit his two children while he and his spouse went out to a party. They left sometime around 8:00 or 9:00 p.m. and arrived home late the next morning, or early the next morning, sometime around 3:00 a.m. The complainant had slept over as she did on other occasions when she would walk to her place in the safety of daylight later in the morning.

2     Both the complainant and the defendant in this case stated that the complainant had told the defendant to wake her up the evening before for the next morning after the accused’s spouse and children would leave for their hockey game. They in fact did leave that morning and the accused attended on the complainant who was lying or sleeping on the futon couch that she normally used when she slept over. Both the complainant and the defendant agreed that in the recent past on similar occasions where the complainant would babysit and sleep over, the defendant would stroke the complainant’s arms gently to awaken her.

3     On December 14th 2008, the accused began stroking the defendant as usual, what happened thereafter bears two differing versions. The complaint states that the stroking went beyond the limited nature of prior occasions. That it progressed to something further. She states she was semi-conscious, however aware of what was happening but unable to prevent it due to a paralyzing fear that overtook her. She lay there, according to her, not participating while the defendant went from stroking her arms and legs, thighs, stomach, breasts to where he eventually began to lick and touch her clitoris.

4     She states that the defendant was rough, as if daring her to wake up, he stopped, according to her, when she began shifting. He then pulled up her pants and left to another room. She stated that she did not consent nor convey any such message by her actions that morning. Further, she stated that she was semi-conscious, however fully aware of what was going on but due to fear, she could not respond. She wanted to move however, her body again, would not respond.

5     After she woke, she went to the washroom to change, fixed her hair and she states that the defendant was acting like nothing happened. She left shortly after emerging from the washroom and after a reciprocal hug with the defendant who kissed her on the forehead. Such was a pattern that had developed over time in the past. She ran home, according to her testimony and told her mother that she had been sexually assaulted.

6     The police were called and charges were ultimately laid and the trial of this matter has gone on for three days and she denied any flirtation or flirtatious behaviour occurred with the defendant on prior occasions which would have signalled to the defendant any amorous inclinations towards him. In re-examination she indicated that she was angry with the defendant on the morning in question as he was acting like nothing happened and she expected him to say something to her such as, did you enjoy your sleep or something akin.

7     He stated that she lied about having leukemia and telling her family, friends and the defendant and his wife and children because she was angry and wanted the defendant to feel guilty. She maintained this lie for several months, creating an elaborate story of why she was receiving platelet therapy rather than chemotherapy and why she was attending St. Joseph’s Hospital rather than St. Michael’s.

8     She maintains that this lie commenced in May 2009 and was carried out until she was exposed in November 2009. She says her friend had caught her in a lie as she was spotted going to a park rather than the purported therapy session. She testified that she fessed up, using her words, to the lie in July 2009 to Detective Foster. The evidence stated she continued to perpetuate the lie until November of 2009.

9     The defendant acknowledged that the complainant was his babysitter however, he stated his relationship with her was of a more complex nature and had developed and grown outside the context of the babysitting situation. He states that he interpreted the behaviour of the complainant as one whereby she sought him out and they mutually flirted with one another. He describes various incidents which led to his belief that the complainant had amorous inclinations towards him.

10     He describes having enrolled in a jujitsu martial arts program in 2007, when after a few sessions the complainant joined. Here they wrestled together and wrestling involved many intimate poses and she states that according to her they often were wrestling with each other.

11     He states a relationship developed, his fondness began to grow for her and they would dine from time to time after these bi-weekly martial arts sessions. He states also or he points to other events that led him to this belief, he states that the way he would wake up the complainant had changed over time. Where initially he would simply wake her up without stroking her and eventually it was a more caressing type of stroke which was used to wake her up.

12     They had talked about having or her giving him a practice massage in the context of her being in school studying at a college, massage therapy. He indicates that on one occasion after returning home while she was babysitting, after returning early, I should say, while the complainant was babysitting, he massaged her shoulders in an affectionate fashion outside the sight of his wife and to the apparent satisfaction of the complainant.

13     He points to what he described as a surreptitious walk in an alley where he and the complainant mutually caressed or held each other while outside the public view where they spontaneously took an alleyway back in order to be able to exchange the caress without the public, or outside the public view.

14     He also points to two sessions or for the lack of a better word, he also points to two events whereby he rubbed the complainant’s stomach in the purported context of checking the piercing she had on her belly button. He states that this was an occasion where again, a caress of an intimate nature was given to her.

15     On the night before the occurrence he points to the fact that she had requested that he wake her up after his wife and children were to leave for a hockey event. In his mind, according to his evidence, he thought that this was related to the earlier discussions they had had with respect to him obtaining a practice massage from the complainant. He states that on the next morning, he awoke, his wife and kids got ready, left the home, making a great deal of noise.

16     He washed himself and then began to stroke the complainant. He had expected her to get up, was his evidence as she would in the past, however she continued to lay there without getting up. She did not open her eyes. He then continued to stroke her and then he indicated, began massaging her temples, arms, hands, thighs, using pressure. According to him, having regard to the request by the complainant the evening before, the fact that the room was lit, her usually getting up upon him stroking her as she had done in the past as well as the active nature of the massage he was giving her, he interpreted the fact that she kept her eyes closed as an indication she was enjoying the massage and wished him to continue.

17     The massage lasted some 30 to 40 minutes, according to him and became more sexual as it progressed. He states he would guide her body to different positions and she would move in accordance with his guidance. She would move down the bed when he would suggest the same with his hands. He states he never held her down or restrained her in any fashion.

18     He states that he began fondling her breasts over her clothes and when he eventually tugged at her top, she arched her back to assist the lifting of the same from her breasts. He further stated that she moaned several times and raised her hips to allow him to lower her pants. He licked her and she moaned. He states she in fact grabbed his buttocks while this was occurring. The behaviour and the cooperation of the complainant led him to believe she had consented and was participating in the session in question. When he surmised that she was menstruating, he stopped the session, pulled up her pants and left.

19     His interaction with the complainant thereafter according to him was awkward and after she exited the washroom, they had little discussion, as a result of the awkwardness of the moment. He states he hugged and kissed her on the forehead as was his practice prior to her leaving.

20     The Crown has the burden of proving the elements of the offence beyond a reasonable doubt. The accused is presumed innocent until proven guilty. In determining the paramount question of whether on the whole of the evidence I am left with a reasonable doubt concerning the guilt of the accused it is often necessary to consider issues of credibility.

21     Where there are discrepancies between the testimony of various witnesses with respect to events and chronology, the test established in R. v. WD, [1999] 1 S.C.R. 742. The Supreme Court of Canada has indicated that issues of credibility should be considered as follows; A, if I believe the evidence of the accused, I must acquit. B, if I do not believe the evidence of the accused, but I am left in a reasonable doubt by it, I must acquit. And C, if I do not believe and I am left in a reasonable doubt by the evidence of the complainant, I must consider whether on the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt about the guilt of the accused.

22     In the case before me, I have the complainant stating there was no consent, she denies any flirtations with the defendant however, her joining the jujitsu club in my view was to be with the defendant. Her request for him to wake her up in the morning after the wife and kids have left, knowing he would caress her as he had in the past is also indicative otherwise.

23     The protracted lie with respect to her having leukemia was far reaching, elaborate, sophisticated in that it upset and convinced her whole entourage of the same. This leads me to be cautious in assessing her demeanour on the stand and with the police officers after the occurrence.

24     Her explanation that she was paralyzed with fear is also difficult to accept as she conveyed no reluctance to be with the defendant prior to December 14th 2008, had requested he wake her up and according to her own evidence he began to wake her up in the usual fashion.

25     She relates that throughout that he held her, but later in the session after the session had gradually become more sexual, there was no reason given for her to be fearful when the session had just began with the stroking and massaging prior to it becoming outright sexual in nature.

26     The timelines the complainant gives with respect to when she staged having leukemia are difficult to accept in that she states her mother told her that having told the defendant’s family in November 2009, her evidence is that she fessed up to the police officer in July 2009 in having lied about having leukemia and this in my view is inconsistent with her stating that she perpetuated the lie until November 2009. Even if true, it would mean that she lied to the police officer when she told him the lie had ended in July of 2009. In fact, she admits to this lie in cross-examination however, it appears she only reluctantly admitted to this lie to cover up her story that the leukemia lie was in 2009 rather than 2008.

27     The testimony of the accused with respect to time lines is much more internally consistent. The leukemia lie was in 2008, she was discovered in November 2008. The occurrence was in December 2008 and he had no contact with her family or her as per his release conditions thereafter. I accept his version when it occurred as it is more consistent with he and his wife’s concern over the complainant’s health and such would have been unlikely, so manifest after the allegations arose. Having accepted that the leukemia lie occurred in 2008 prior to the occurrence, her explanation that the leukemia lie was to lash out at the defendant, cannot be accepted.

28     The evidence of the accused, it has some problematic aspects, clearly his conduct was inappropriate, stupid, deceitful, however I accept that he did not restrain the complainant. That he did not use his position as employer in the context of babysitter and employer, I guess, to subdue the complainant. That he believed, based on the indicia he observed before and on December 14th 2008 that she was consenting and that he had no reason to believe that she was traumatized, fearful, paralyzed or asleep at the time in question.

29     In fact the indicia relayed by the defendant could in my view reasonably lead him to the conclusion he made. Having found the above, I cannot reject the evidence of the defendant and therefore I must acquit. Thank you all for your time and participation.