nan Editor’s Note: The present decision has been corrected as of March 18, 2005. 2005 SKPC 08 Information 35870650 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT REGINA, SASKATCHEWAN Between: HER MAJESTY THE QUEEN and LAURENT TOUPIN Ms. Inez Cardinal Counsel for the Crown Mr. Aaron Fox Counsel for the Defendant Note: an order pursuant to section 486(3) of the Criminal Code has been made directing that the identification of the complainant and any information that could disclose the identity of the complainant or witness shall not be published in any document or be broadcast in any way. January 14, 2005 LA Matsalla, P.C.J. JUDGMENT [1] Mr. Toupin is charged that, on or about the 21st day of August, A.D. 2003, at or near[…], Saskatchewan, he did commit a sexual assault on T.D. contrary to section 271 of the Criminal Code. The Crown elected to proceed summarily. [2] Ms. T.D. was employed as clerk at the Provincial Court Building on [...]. She assumed her duties in 1998 and although she testified that she knew of the accused in 1999, it is much more likely that she met him in the spring of 2002 after he had assumed his duties as Justice of the Peace in the same building. [3] It appears that there are limited number of employees who worked in the building and so there was, according to Walter Wilhelms- prosecutor from August 2002 to August 2003 who worked in the Bylaw Court “family atmosphere” in the building presumably because everyone knew one another. The staff and the Justices of the Peace (one of whom was working full time and number of others (including the accused) who worked on part time basis) and persons who worked in the building but had offices outside the building, frequently had coffee and socialized together. As might be expected, the persons who worked full time in the building interacted most frequently. Considerable joking and teasing frequently took place amongst all of these persons. believe that many of the jokes that passed between the men and women, both verbal and written, frequently had sexual connotations to them and some were explicitly sexual in nature. Some persons made point of making numerous copies of the jokes for the purpose of distribution. [4] From the evidence that have heard, it appears that personal information was also exchanged amongst the staff members. T.D. told the accused that she had been member of the R.C.M.P. at one time. Mr. Wilhelms, whose office was not in the building and who only attended at court when necessary, was aware of some of the complainant’s personal life. Some of the comments that were made by some staff members (including the accused) to other staff members (including the complainant) were blunt and personal and were meant to be taken as humorous comments. Even man who the complainant had known for long time made comments to her that embarrassed her. T.D. said that she could take joke but there was limit. If the “off coloured talk”, to use her words, became “a little bit to much, and if it was offensive or took it as little too personal went and told my boss.” (transcript, volume II page 205, lines 10 to 13). Ms. D. testified that she complained to supervisor about comments that the accused had made to her and she was told that the accused was only joking, that she should not take the comments personally and so she reacted as follows (v. II p. 205, l. 18-26 and p. 206, l.1 ...and so okay, you know, just got to keep on going to work, put up with the crap and just try to keep friendly atmosphere at work. didn’t want to be bitch. Mmhmm. there was days wanted to punch him (referring to the accused) in the mouth, but just had to keep on going to work Okay... and take it like joke, laugh it off, laugh it off, and that’s I’m sorry. (The words in italics have been added) Ms. D. described how she felt at the time that some of the more explicit sexual comments were made by Mr. Toupin (v.II, p. 222, l.16-20), was feeling humiliated. was feeling like was that he (once again referring to the accused) was sometimes wearing his robe, and felt like was intimidated. just had to sit there and listen and take it because no matter what said to anybody they weren’t going to take it serious because of who he was. [5] This, then, was the atmosphere in which the incidents now before the court occurred. [6 The accused was police officer with the Regina Police Service for 25 years until he retired in the fall of 1999 with the rank of Deputy Chief of Police. After he retired, he completed Bachelor of Education degree at the University of Regina and thereafter, in the fall of 2001, he was appointed Justice of Peace. [7] It is important to examine certain events that took place between T. D. and the accused over period of about one year from September 2002 to late August 2003. Instances of Interaction between the Parties [8] The evidence discloses that T. D. was married in August of 2002. Prior to that time, T.D. would, from time to time, return to work after weekend trip to Winnipeg to visit friends and he and other co-workers (including the accused) would, in jest, ask her if she “got lucky”(referring to whether she had intimate contact with anyone). Her recollection is that other staff members made similar comments to other staff members. She would laugh and respond in the negative. She recalls that she would on occasion tell him to mind his own business. Mr. Toupin said that he would “help (her) in that department sometime”. By that comment understand the accused to mean that he was offering to engage in sexual conduct with her. She said that she was shocked by the comment and she responded by saying “oh, you think so.” (v.II, p. 219, l. 2-6). She recalls that she reported such comments to her supervisor. [9] In September of 2002, Mr. Toupin approached Ms. D. to see if she would be interested in selling nutritional product that he was promoting. She says that, on numerous occasions, he invited her to number of meetings at which the sale of the product was to be discussed. She never went to any of the meetings because she was not interested. He persisted by asking her to take basket of product home to try out. She took the basket home but she did not bother to try the items. He later requested that the product be returned and when she failed to do so she thought that the only way to get the basket to him would be for him to pick it up at her residence. She provided him with her address and phone number and when he attended at her residence she returned the basket to him. Some conversation took place about some cracking that had taken place in her house and the accused offered to give her the name of friend who might be able to help her repair the cracks. While she was showing him the work that she had done to her yard, she recalls that he touched her on her right side and when she asked him what he was doing she believes that he apologized and that he may have said that he had forgotten that she was “spoken-for-women”. Her impression from his response was that the touching would not happen again. He disputes her version saying that he did not make the comment nor did he touch her but he does recall that feeling came over him that “she expected (him) to do something, like kiss (her) or something like that”. (v. III, p. 402, l. 5-6). [10] Before Christmas 2002, Mr. Toupin recalls buying her chocolates but, after having heard the evidence on the point, believe that he did not plan, in advance, to give her the chocolates but that he ended up doing so at the last moment when he discovered that he could not give the gift to another person. [11] In January of 2003, Ms. D. dropped television set on her leg and when she came to work she was experiencing some difficulty. She lifted her pant leg to show the accused her bruise and he took it upon himself to raise the matter with her supervisor and, as result, she was taken to the hospital to have her injury examined. [12] Although Ms. D. is not clear on the date, she recalls that during the summer of 2003 the accused, on at least one occasion, asked her what she thought of oral sex and extramarital sex. She says that she told him that she did have sexual relations with persons others than her husband with her husbands knowledge and that she enjoyed oral sex. He said that he enjoyed oral sex as well and he said that she told him that the conversation was making her “wet”. gather from the comment that she was aroused by the discussion. Ms. T.D. said that during one of these conversations he offered to “lick (her) pussy” to which Ms. D. responded by laughing and saying “Yeah okay, will keep that in mind”. She testified that the remark shocked and offended her and that she did not know how to respond. The accused would ask her if she was sexually fulfilled and she would respond by telling him that her marriage would not stop her from getting “some” (referring to intimate contact). At times she would laugh at him, call him “a pig” or say that he was “crazy” when he made similar comments to her. Ms. D. recalls one such comment, however Mr. Toupin recalls or similar conversations over the summer. At all times, it appears that all of the discussions had been initiated by the accused. [13] In June or July of 2003, the accused was aware that Ms. D. needed lawn mower and he offered to check to see if neighbour had one for sale. According to her, when she advised him that she would buy the mower he offered to bring it to her house but she declined to have him come to her residence and she took possession of the mower in the parking lot across from her work place. He testified that the only arrangement made for delivery was in the parking lot. When she did not have money to pay for it, he offered to drive her to the bank teller machine to get some money. On this occasion, he said that he felt “vibration” between them “...but nothing occurred”. (v. III, p. 407, l.8-9) He suggested that she come to his condominium to use the swimming pool. She thought that he wanted to see her in bathing suit and so, in order to dissuade him, she suggested that her son may be interested. She did not respond to the suggestion. [14] She recalls that in July or August of 2003, Mr. Toupin asked her to obtain some information respecting certain offenders who had allegedly stolen his vehicle. She checked on the status of the matter for him. [15] The accused did not at any other time call T.D. at home or ask her to accompany him alone outside the work place for the purpose of making conversation or for the purpose of socializing. T.D. did not specifically tell the accused to stop making the comments. She did not tell him that she had spoken to her supervisor about his comments. She testified that her way of handling the comments was to “laugh (them) off.” She described her response to the comments in the following fashion (v.II, p. 239, l. 18 -26) What am supposed to do? could have punched him in the face. could have kicked him in his nuts. could have did whatever wanted to do to get him off of me, but can’t do that. would have been sitting here on trial for assault or something. can’t I’m supposed to act professional, and don’t want to lose my job over somebody else’s stupidity or because they’re pervert or whatever. I’m just supposed to keep on going to work and put up with the crap? No further contact of note occurred between the parties prior to the incident on August 21. The subject matter of the charges [16] While there is some consistency as to the incidents that occurred prior to August 21st, the same cannot be said about the events of August 21st. (a) The Complainant’s evidence [17] T.D., on occasion, was required to work in the Youth Court office on the third floor of the building. One of her duties was to retrieve files pertaining to certain persons who had cases in court because documents had to be prepared in relation to the court appearance. According to her, at about 11:30 in the morning on August 21, 2003, while she was filling in for staff member, she had picked up some files and she was returning to the general office to complete related documents. As she proceeded down the hallway she passed the doorway to courtroom #10 through which judge would normally enter and she heard her name. The courtroom was not otherwise in use at the time. After discovering that the accused had called her, she entered the dimly lit courtroom finding him in his robes and she asked him what he wanted. At the time she was holding some files in her right hand. He took her left hand and placed it over his clothing onto his erect penis where he rubbed her hand into his crotch. She was surprised and quickly pulled back her hand asking him what he was doing and telling him that he was crazy, that he was going to get into trouble or he could get caught and that he should leave her alone. She was shocked and shaking as she backed out of the courtroom. She then saw Mr. Wilhelms who had walked out of another courtroom. He asked where the accused was and she directed him to the open doorway. She then testified that she “took off down the hallway” to the Youth Court office where she felt obliged to complete some necessary documents since she was the only clerk available. [18] Some minutes later, while she was at her work station attempting to complete the documents, she felt the accused’s hands on her breasts and, at the same time, he was rubbing his penis into her back. When she turned in her chair she saw the accused still in his court robes. She said that she told him to leave her alone and when she swivelled in her chair to get away from him, he came close enough to put his lips on her face and he placed his hand on her crotch saying that he wanted to “fuck” her. She said he may have attempted to take her hand once again but she resisted his attempt to kiss her and she tried to avoid his contact with her crotch. She responded by telling him that he was crazy, that he could get into trouble and that he could get caught. He then said that he would leave her alone and he told her that if she changed her mind he would be waiting in his office. [19] Ms. T.D. told the court that she was shaking and that she did not know what to do. She finished some of her work and then left for lunch with some staff members. In chief, she described her conundrum (v.II, p. 245, l. 4-11), ... didn’t know what to do. Was supposed to tell everybody that he did this. didn’t know what to do. Like, had gone to the supervisor before with all the things he had said. No, it’s just joke. It’s just joke. They didn’t want to help me or do anything. thought was in you know who is going to believe me. This is supposed to be Judge or, you know, that kind of thing. Mmhmm. And thought no one is going to listen to me, but told him to leave me alone, and he kept on touching me. After lunch she did not finish all of her work. For number of days thereafter she was working out of the office at various locations outside the city of […]. In fact, her job took her out of the office for about two weeks. She says that she reported the incident to her supervisor and was away from work for about two weeks. As understand it, early in the two week period she received telephone message from the accused telling her that he needed to talk to her and asking her to return his call. He provided her with his cell number. She did not call him but she did forward the message to her supervisor. [20] On September 10th, she was asked by her supervisor to provide brief statement. In the statement she did not describe the accused rubbing his penis on her back, attempting to kiss her or touching her crotch although in later statement she did refer to the latter. The [...] Police Service became involved and she provided another statement to Cpl. Pratt on September 26th. (b) The Accused’s evidence [21] Mr. Toupin testified. He acknowledges that in courtroom #10 he did indeed take T.D.’s hand and guide it to his groin, however he did not rub her hand into his groin rather T.D. squeezed his semi-erect penis for “a matter of second” and during that time he had removed his hand from hers. He recalls that she laughed. The incident took 20 to 30 seconds and prompted T.D. to tell him that he was crazy. He could not recall where T.D. was when Mr. Wilhelms advised the accused that court was ready to proceed but she then left the room and he proceeded to deal with matters in court. The accused believed that in light of the conversations that he and she had had prior to August 21st that “there was never ever any indication that that she wasn’t consenting to it. Had there been, as said, wish would have heard something because wouldn’t be here today.” (v. III, p. 430, l. 1-5) [22] Mr. Toupin’s version of the incident in the general office differs significantly from that of the complainant. After court had concluded, he approached T.D.’s desk and asked her if she wanted to touch him again and she did touch and squeeze his erect penis over his clothing. He asked her if she wanted to do it again but she said that “we should be careful. Somebody could come in through the front door,” (v. III, p. 432, l. 25). He then suggested that she give him call or come to his office. He went on to say that he may have rubbed the side of her breast with the back of his hand but he definitely did not grab her breasts. He denied rubbing his penis against her back and he did not touch her crotch nor did he tell her that he wanted to “fuck” her. His impression was that the incidents would be the start of sexual relationship, however, since that day, he did not have any contact nor did he have any conversation with her. He admits that subsequent to discovering that complaint had been filed by T.D., he did leave phone message with her asking that she call him. Mr. Toupin said that week or two after the incident he received call from the senior presiding Justice of Peace for the province who gave him letter from the Chief Judge. Mr. Toupin resigned his position shortly thereafter. According to him, at no time did he have any discussion with T.D.’s supervisor or with the senior presiding Justice of the Peace about any of his comments to her or about any of the conversations that he had had with T.D. [23] At the end of the day, Mr. Toupin’s perception of his relationship with T.D. can be seen from this exchange between him and Crown counsel (v. IV, p. 668, l. 3-13) And you recall that, you know, you testified that as long as since (T.D.) hadn’t given you any indication that she didn’t want this touching to occur, that that’s why you continued to pursue it? If (T.D.) would have ever given me an indication that she didn’t want anything it wouldn’t have happened. Well, sir, you didn’t ask her if she wanted it, did you? You know what, when she’s agreeing to these conversations of very personal nature, that’s pretty indicative to me that she is fully and cognizantly participating in these conversations. (c) Mr. Toupin’s Statement to the Authorities [24] In the midst of the cross-examination of the accused, the Crown made an application to question him on statement that he had made to persons in authority on January 14, 2004. The statement consisted of video taped conversation supported by transcript of the conversation. After had determined that the statement had been provided voluntarily, the defence argued that the statement should be excluded on the basis that Mr. Toupin had been detained and that his right to counsel under section 10(b) of the Charter had been infringed. concluded that the accused had not been detained and that the defence had failed to establish breach of his rights. [25] The defence took the position that permitting the Crown to use the statement to cross-examine the accused was tantamount to allowing the Crown to enter the statement as evidence and, in that manner, to allow the Crown to split its case. Crown counsel took the position that it did not intend to tender the statement in evidence. After considering the argument, was of the view that, on the basis of R. Dickie (1970), 1970 CanLII 577 (SK QB), C.C.C. (2d) 396 MacPherson Q.B.), the statement could be used in cross-examination for the purpose of attacking the credibility of the accused. [26] It was evident that, after being advised through Mr. Webster’s office that complaint respecting his conduct toward T.D. had been filed, the accused responded to an invitation from the […] Police Service to attend at the police station. He said he believed that the interview was to relate to another matter and not to the complaint. At the time he believed that the matter was closed and so when questioned about it he became aware, for the first time, that police investigation was underway. Mr. Toupin “was flabbergasted by the charges” (v. IV, p. 649, l. 16). He said that he intended to provide information to the police however he did not advise them that he had, in courtroom #10, taken T.D.’s hand and put it on his penis rather, he said that he made comment to T.D. that surprised her. He went on to wrongfully advise them that thereafter court clerk and not Mr. Wilhelms had approached to advise that the parties were ready to proceed in court. Mr. Toupin incorrectly suggested that T.D., while speaking to them, had verbally “stumbled” when she spoke to him outside the courtroom. He told the police that his comments to T.D. were only meant to be jokes. In court, he insisted during his testimony that his comments to T.D. were not jokes but were part of serious conversation. He did not tell the police about the second incident in the Youth Court office. His reason for being less than forthcoming was that the occasion was the first time that he had been asked about the incident, that he was embarrassed about answering questions from police officers with whom he had worked with for many years and, most importantly, he did not want his wife (a […] employee) to find out about the incident. In any event, Mr. Toupin insists that his actions with T.D. were innocent and consensual. He said that he only wanted to give the police enough information to enable them to speak to T.D. and to confirm the innocence of his contact with her. (d) Credibility [27] As is often the case at the trial level, conflicting versions of an incident necessitates finding on the issue of the credibility of witness. The Supreme Court of Canada, in R. W. (D) 1991 CanLII 93 (SCC), [1991] S.C.R. 742, and the British Columbia Court of Appeal, in R. C.W.H. (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3rd) 146, have suggested that the following set of instructions ought to be put to jury when considering the issue, “First, if you believe the accused, obviously you must acquit; “Secondly, if, after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; “Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; “Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” The instructions have been favourably referred to by our Court of Appeal in R. McKenzie (1996), 1996 CanLII 4976 (SK CA), 106 C.C.C. (3rd) at 5. [28] Prowse, in Working Manual of Criminal Law, Carswell at 125, concisely sets out factors that the Supreme Court suggests can be considered in determining the credibility of witness. The factors include the following, (a) Whether the witness is honestly endeavouring to tell the truth; (b) Whether the witness is sincere and frank; and (c) Whether the witness is biased, reticent and evasive. (2) Specifically (a) The witness’s general integrity and intelligence; (b) The witness’s powers to observe; (c) The witness’s capacity to remember; (d) The witness’s accuracy in statement; and (e) The relationship that the witness had with the accused. [29] It is necessary to remember that trial is not competition between witnesses who testify for the Crown or for the defence. The ultimate question is not which side ought to be believed but whether, on the evidence that accept, the Crown has proven the elements of the offence beyond reasonable doubt. [30] It is necessary that certain findings of credibility be made in this case. i. The Evidence of T.D. [31] Ms. T.D. is single mother who is caring for young son. She was employed as clerk for about years prior to the date of the charge. It is evident that her job is important to her and that she was intent on doing good job. [32] observed young women who had no airs about her. She spoke bluntly and, believe, she can give as well as she can take when it comes to social discourse. When asked about her attitude to sex in and out of marriage she responded candidly however even she was bothered by some other comments that were particularly crude. [33] She gave her evidence in an honest and straightforward fashion. She was vigorously cross-examined. While her recollection was not perfect and her evidence was not consistent on every point, believe that she did her best to relate her evidence as accurately as she could recall it. She was required to specifically describe number of incidents that took place over period of about year and then year after the last of the incidents had taken place and believe her recollection was accurate. After reviewing her testimony carefully cannot say that she attempted to be evasive or that she, in any other way, provided her evidence in an effort to mislead. [34] The evidence clearly indicates that the accused pursued her to make conversation - much of it sexual in nature. Even the evidence of the accused confirms that she did not encourage the conversation and so it is not surprising that she did not recall every detail of each incident that occurred prior to August 21st. She did not have any interest in him. She did not respond to his persistent requests to become involved in his sales venture. When he wanted to see her at her house or to come to his residence she avoided him. She complained to her supervisor about his conduct. After the August 21st incident, she did not return his call to her nor did she have anything to do with him. Her conduct was entirely consistent with someone who wanted little to do with the accused. [35] watched her carefully as she provided her version of the incidents of August 21st. She readily prepared diagram of the third floor of the building to show the court where the incidents had taken place. She described what had occurred in the courtroom and she then provided detailed evidence as to how the accused approached her and touched her in the Youth Court office. While on the stand, she physically reenacted her response to his touch. Her evidence was punctuated with expressions of disgust as she described the accused’s comments to her and his actions At times she was especially emotional when she testified that she thought that she had little choice but to tolerate his comments and, again, when she described her response to his actions after the incidents. do believe that the emotion that she expressed was genuine. [36] Her evidence was not rehearsed nor do believe that it was concocted. In short, believe her evidence. (ii) The Evidence of the Accused [37] At times the accused gave his evidence in what appeared to be mechanical, matter-of-fact manner that seemed like more of recitation of the facts as he saw them than description of genuine friendship with T.D. that he had reason to believe was developing into something more than friendship. [38] It is of some significance that when he spoke to the police about T.D.’s complaint that he was evasive and that his description then was inconsistent with his evidence in court. [39] At the end of the day was less than impressed with his testimony. (e) Conclusions on the evidence [40] Respecting the first incident on August 21st, the version provided by each of the parties had some similarities. The accused initiated the contact in the courtroom without any prior discussion or contact with T.D. that day and it was he who brought her hand to his crotch. He admitted that he was erect or semi-erect indicating that before the first incident he was likely already aroused. It is note worthy that there was no physical contact between the two in the months leading to August of 2003 and so it is reasonable that she would be shocked when, on this occasion, he grabbed her hand. am satisfied that T.D. accurately described the incident. do not believe that she consented to the physical contact or that she participated in that contact. [41] In so far as the second incident in the office is concerned, once again believe T.D.’s evidence as to what transpired. His aggressive conduct toward her in the Youth Court office (touching her breast and crotch and trying to kiss her) is entirely consistent with the aggressive conduct he displayed in courtroom #10. He was still aroused even after he had conducted court. His testimony that T.D. initiated the contact in the office is inconsistent with the fact that he continually initiated discussions of sexual nature prior to August 21st and that on the 21st he also initiated contact with T.D. in courtroom #10. Issues [42] a. Whether the Crown has proven the actus reus of the offence, andb. Whether the Crown has proven the mens rea of the offence. Criminal Code Provisions [43] The Crown elected to proceed by way of summary conviction. [44] Section 271 reads as follows: Everyone who commits sexual assault is guilty of b) an offence punishable by summary conviction and liable to imprisonment for term not exceeding eighteen months. [45] The pertinent provisions of section that defines an assault (s. 265) read as follows: (1) person commits an assault when (a) without the consent of the other person, he applies force intentionally to that other person, directly or indirectly;... (2) This section applies to all forms of assault, including sexual assault, sexual assault with weapon, threats to third party or causing bodily harm and aggravated sexual assault. (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 person other than the complainant;... (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, judge, if satisfied that there is sufficient evidence and that, if believed by jury, the evidence would constitute defence, shall instruct jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [46] Section 273.1 defines “consent” in the following subsections: (1) Subsection (2) and subsection 265(3), “consent” means, for the purposes of section 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 section 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing position of trust, power or authority; (d) the complainant expresses, by words or conduct, lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, lack of agreement to continue to engage in the activity. (3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained. [47] On the matter of consent, s.273.2 restricts the defences that are available to an accused. The section reads as follows: It is not defence to 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. [48] Corroboration is not required in prosecution of an offence under an offence of s. 271. Interpretation of the Law [49] One of the leading cases in the area is the case of R.. Ewanchuk 1999 CanLII 711 (SCC), [1999] S.C.R. 330. [50] The Crown must prove that sexual assault had taken place and that the accused intended to commit the act. Dealing firstly with the requirement that the Crown must prove that the act occurred, Major in Ewanchuk at 347 said this 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. 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. Litchfield, 1993 CanLII 44 (SCC), [1993] S.C.R. 333, and R. Chase, 1987 CanLII 23 (SCC), [1987] S.C.R. 293 and regarding the 3rd element, at 348, 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. Jensen. (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp 437-38, aff’d 1997 CanLII 368 (SCC), [1997] S.C.R. 304, R. Park, 1995 CanLII 104 (SCC), [1995] S.C.R. 836, at p. 850, per L’Heureux-Dube J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at 513. At 349 the Court went on to say, The Complainant’s statement that she did not consent is matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when defence of honest but mistaken belief is raised in the mens rea stage of the inquiry. [51] On the issue of consent, can only reach one of two conclusions either the complainant consented or she did not. It cannot be said that her consent could be implied, see Ewanchuk at 349 para. 31. [52] The Crown can establish the accused’s guilty state of mind by showing that he intended to touch the complainant however, for an offence to take place the touching must be culpable and not innocent. Major, at 354 said this on that point, As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from the perspective of the accused. Speaking of the mens rea of sexual assault in Park supra, at para. 39, L’Heureux-Dube J. (in her concurring reasons) stated that:the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying “no” but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying “yes”. In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence. [Emphasis in the original] [53] It is clear that “silence, passivity or ambiguous conduct” on the part of the complainant cannot provide the accused with defence. At 356 the court said Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”. As Fraser C.J. stated at p. 272 of her dissenting reasons below: One “No” will do to put the other person on notice that there is then problem with “consent”. Once woman says “no” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain clear and unequivocal “yes” before he again touches her in sexual manner. [Emphasis in the original] [54] Section 273.2(a)(ii) of the Criminal Code provides that person who is willfully blind or reckless in his belief that person has consented to sexual activity cannot rely on the defence of honest but mistaken belief in consent. [56] The defence can be established upon evidence that can realistically and reasonably be capable of supporting the defence (see v. Park [1985] S.C.R. 836 at 853). Such evidence must point to belief on the part of the accused that the complainant communicated consent to engage in the sexual activity. It is not sufficient for him to believe that the complainant in her own mind desired the activity. He cannot speculate as to what she may have on her mind (Ewanchuk at 354). The court in Park referred favourably to Madam Justice McLaughlin (as she then was). in R. v. Osolin 1993 CanLII 54 (SCC), [1993] S.C.R. 595 who described the belief at 649-50 as follows ...the accused’s mere assertion of his belief is not evidence of its honesty. The requirement that the belief be honestly held is not equivalent to an objective test of what the reasonable person would have believed. But nevertheless it does require some support arising from the circumstances. belief which is totally unsupported is not honestly held belief. person who honestly believes is person who has looked at the circumstances and has drawn an honest inference from them. Therefore, for belief to be honest, there must be some support for it in the circumstances. person who commits sexual assault without some support in the circumstances for inferring the consent of the complainant has, at very least, been wilfully blind as to consent. [Emphasis added in Park at 853] [57] The defence can only be considered by the finder of fact if it has an “air of reality”. In Osolin at 648-49 McLaughlin J. said In order to give an “air of reality” to the defence of honest but mistaken belief, there must be (1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting. It is important that the Judge ought not to assess the credibility of witness or to weigh the evidence when deciding whether the defence has an “air of reality” (Park at 848). Cory J. in Osolin at 682 defined the phrase as follows, The “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, reasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury. [58] Madam L’Heureux-Dube in Park at 856 put the question to be decided as follows Put another way, is it realistically possible for properly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent? If the stories cannot realistically be spliced in such manner, then the issue really is purely one of credibility of consent or no consent and the defence of mistaken belief in consent should not be put to the jury. [59] It has often been held that the court must look at the “totality of the circumstances” (Park at 848) to determine if an air of reality to the defence exists. [60] helpful guide to the analysis that court must undertake was provided by Major J. in Ewanchuk at 359-361. Analysis [61] I am satisfied that touching did occur in courtroom #10 and that the accused compelled T.D. to touch him and there can be no doubt that the touching had a sexual nature. The accused’s conduct was spontaneous and carried out without any advance notice to the complainant and without her consent. The actus reus with regards to the first incident has been made out. believe T.D.’s description of the incident in the general office. cannot accept the accused’s version of the events because do not believe his evidence. Touching of a sexual nature took place and the complainant did not consent to the contact. The actus reus has been proven with respect to that incident as well. [62] Insofar as the state of mind of the accused is concerned, the accused has taken the position that T.D. did consent but even if he was mistaken as to her consent his actions were not culpable. In other words, he argues that he had an honest but mistaken belief that she had consented to the contact. Before considering the defence, however, must decide if any evidence exists so as to give that defence an air of reality. The simple suggestion that the accused thought that the complainant consented to the contact is insufficient. am not to compare the accused’s belief with the belief that any reasonable person may have held in the circumstances. Without weighing the evidence, must look at all of the evidence (even the evidence of the complainant) to determine if there is some support for the belief that Mr. Toupin claims to have held at the time. Honest but Mistaken Belief in Consent [63] I have had no difficulty concluding that most of the employees in the building were often subject to or the source of numerous crude jokes and comments that were of a sexual nature. These exchanges had been ongoing for some time and it does not appear that anyone considered the discussions to be serious conversation. The accused, however, believes that his discussions with T.D. about such matters were serious. It must have become readily apparent to him from his participation in these discussions with that T.D. could be blunt, direct and honest about sexual matters. She participated in the exchanges even though at times she responded by calling him pig and saying that he was crazy. [64] At no time did the accused express his desire to get to know her or to see her outside the work place. It is clear that he did not raise the possibility of physical relationship nor did she express any interest in sexual liaison. In fact, when he suggested that he would be available to do so she was less than enthusiastic. He knew that she was sexually active outside her marriage yet she showed no sexual interest in him. The other instances described by the accused are more consistent with normal interaction between persons in that particular work place than with an indication of consent to sexual activity. [65] The accused was the view that since T.D. was willing to participate in conversations that were of sexual nature, she must have consented to touching that was of sexual nature. Since she did not say that she was not consenting then she was consenting. This interpretation of consent is not in accord with the authorities. [66] It must be remembered that the numerous instances upon which Mr. Toupin bases his belief are scattered over period of about one year. The accused himself does not describe relationship that was intensive or that could be taken as developing into sexual relationship between the two. Later, when Toupin’s offer to perform oral sex was greeted by T.D. without enthusiasm and yet later when T.D. refused the accused’s offer to deliver the lawn mower to her house prompting delivery in parking lot, one would expect that the accused would have received message. After looking at all of the evidence, I cannot see anything in the evidence to support an honest belief on the part of the accused that T.D. consented to the sexual contact in question. reach this decision without making determination about the credibility of the witnesses and without weighing the evidence. Therefore the accused’s suggestion that he had an honest but mistaken belief in consent cannot be considered because I cannot cobble together from the totality of the evidence sufficient evidence from which it could be said that the accused could have drawn an honestly held belief or from which he could have honestly inferred that the complainant had consented to his touching her . [67] Even if it could be said that the accused could have held an honest belief in consent on the basis of the instances referred to earlier in this decision, must determine if he did honestly believe that the complainant communicated consent to him. do not accept the accused’s evidence and so do not believe him when he says that he honestly believed that she consented to the contact. He was so aroused and so intent on relieving his sexual energy that he did not care to seek the complainant’s consent to engage in sexual contact. He was oblivious to whether the complainant wished to engage in the conduct and he sought only his own sexual satisfaction. [68] Therefore I am satisfied that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted the complainant in both courtroom #10 and in the Youth Court general office. He is guilty as charged. will now hear from counsel on the matter of sentencing. L.A. Matsalla, P.C.J
The accused is charged with committing a sexual assault contrary to s. 271 of the Criminal Code. The accused was police officer with the Regina Police Service for 25 years until he retired in 1999 with the rank of Deputy Chief of Police. In the fall of 2001, he was appointed Justice of the Peace. The Crown proceeded summarily. The first incident involved the accused bringing the complainant's hand to his crotch. The second incident involved the accused touching the complainant's breast and crotch and trying to kiss her. The issues are whether the Crown proved the actus reus and mens rea of the offence. HELD: The accused is guilty of sexually assaulting the complainant in both courtroom 10 and the Youth Court general office. 1) The alleged touching occurred and it was of a sexual nature. The complainant did not consent to the contact. 2) The parties, along with most of the employees in the building, were often subject to or the source of numerous crude jokes and comments of a sexual nature. The accused believed that his discussions with the complainant about such matters were serious. However, at no time did the accused express his desire to get to know her or to see her outside of the workplace. He did not raise the possibility of physical relationship nor did she express any interest in sexual liaison. When he suggested it, she was not enthusiastic. The interactions described by the accused are more consistent with normal interaction between persons in that particular workplace than with an indication of consent to sexual activity. Looking at all the evidence, there is nothing to support an honest belief on the part of the accused that the complainant consented to the sexual contact. The accused's suggestion that he had an honest but mistaken belief in consent cannot be considered because the Court could not cobble together from the totality of the evidence sufficient evidence from which it could be said that the accused could have drawn an honestly held belief or from which he could have honestly inferred that the complainant had consented to his touching her.