In Canada, there are two key assumptions that are essential elements in every criminal trial. The first is that the defendant is presumed innocent and the burden of proof is on the Crown. The second is that to obtain a conviction, the judge or jury must be convinced that the defendant is guilty beyond reasonable doubt.
In criminal cases involving a sexual assault charge, very often, the only evidence that is presented is the testimony of the accused (the defendant) and that of the complainant. And typically, the defendant and the complainant give a conflicting view of, at least some of, the circumstances and events surrounding the alleged sexual assault. In such cases, the key issue to be decided by a judge or jury is whether the testimony given by each of the opposing parties is seen as credible and reliable. And, as asserted by the Ontario Court of Appeal in R. v. Nimchuck, “if a reasonable doubt exists in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would of course, require an acquittal”.
There are many examples in caselaw where the judge was required to decide a case based solely on conflicting testimony for the defendant and complainant, and frequently, such cases are decided in favour of the defendant. This is not surprising given the principles of reasonable doubt and presumed innocence.
R. v. Lacombe (2018) is the appeal of a trial involving a woman who alleged that she was sexually assaulted on a fire escape balcony on two subsequent evenings while she and the defendant were residing in an adult assisted care facility. The judge in the original trial acquitted the defendant of the charge and the decision was upheld by the Ontario Court of Appeal.
The alleged sexual assault in Lacombe consisted of sexual touching. And, the complainant’s and defendant’s version of the events differed in terms of the details of what occurred and also, with respect to whether or not the touching was consensual. The complainant stated that the defendant touched her inside her pants without her consent and did not stop when she asked him to. The defendant’s evidence was that the complainant pursued him, he never put his hand inside her pants, and any touching was at her request.
In Lacombe, the trial judge noted that if he were to accept the complainant’s evidence on its own, he could find the defendant guilty; however, Justice Leroy recognized that a judge is obliged to consider all the evidence, including the defendant’s testimony. In the current case, the totality of evidence gave the judge reason to doubt the reliability of the complainant’s evidence. Notably, the judge wondered why the complainant met the defendant on the balcony a second time after allegedly being sexually assaulted the previous evening. The Court referred to R. v. J.M.H. (2011) where the Supreme Court of Canada acquitted the defendant accused of sexually assaulting a 17-year-old woman and one of several concerns voiced by the judge in J.M.H. is why the complainant returned to sleep with the accused after she had allegedly been violated by him in the same bed on a previous occasion.
In Lacombe, the trial judge was not able to resolve the differences in the defendant’s and complainant’s narratives. And, despite finding some weaknesses in the defendant’s evidence, the trial judge found that he must acquit the defendant. On Appeal, the Court found no error in law in the original decision so the Appeal Court upheld the finding of ‘not guilty’.
R. v. Solomon (2019) is another sexual assault trial that hinged solely on the testimony of the two opposing parties and specifically, on the question of whether the defendant had an honest but mistaken belief in consent. This case involves a young man and woman who went back to the woman’s apartment at her invitation after they, along with other single adults, had gathered at a downtown bar. Both the complainant and the defendant gave evidence that, after talking for a while on the living room sofa, their interactions progressed to kissing and fondling and several times, the defendant attempted to slide his hand into the complainant’s pants and she told him to stop, which he did. Then, some time during the above interactions on the sofa, the complainant got a phone call.
The two witnesses disagreed on what occurred next. The complainant testified that she made it clear that she didn’t want to go any further. But, when she finished her call and turned back to the defendant, she said he had removed all his clothes and said “Let’s do it. And, she testified that she agreed to go to her bedroom because she was afraid of what he would do if she said ‘no’. In contrast, the defendant testified that he only pulled down his pants to his knees to show his erect penis so that the complainant would know that he was frustrated and had been aroused for some time. Further, he says he made it clear that he didn’t want to stay if it wasn’t going any further.
Both witnesses agreed that they subsequently went to the complainant’s bedroom and although neither had a condom, they proceeded to engage in sexual intercourse. The complainant said that, after some discussion on whether he should go home or sleep over, she agreed that he could stay. The complainant also testified that she then went to the bathroom to clean up and when she returned, the defendant said he wanted to have sex again and he flipped her over and entered from behind twice. She said he appeared surprised when she pushed him away and soon afterwards, he left the apartment.
The defendant described the incident very differently – he said that he fell asleep when the complainant went to clean up and he didn’t awaken until around 5 a.m., at which point he moved closer to her to see if she was interested in ‘going again’. He testified that she moaned, removed her underwear and moved her legs apart to accommodate sexual intercourse, but he quickly withdrew because he lost his erection and then decided he should go home. Before leaving, the two agreed to meet at the spinning class later in the day, and although he saw her in the studio, she appeared to avoid talking to him and then left. The defendant testified that he was shocked when police contacted him a few days later, after the complainant made a sexual assault complaint.
Under Canada’s Criminal Code, ‘assault’ is an intentional application of force against another person without their consent. And, sexual assault is an assault involving sexual circumstances where the sexual integrity of the victim is violated. A wide variety of activities fall under the definition of sexual assault, from uninvited touching of a person’s buttocks to gang rape.
In the current case, the sole issue in deciding whether the offence of sexual assault took place is consent. In the Criminal Code, consent is defined as the voluntary agreement to engage in a particular sexual activity and “there is no such thing as “implied consent” to a sexual activity”.
In Solomon, the complainant testified that she did not consent to the 2 incidents of sexual intercourse in her bedroom. After considering all the circumstances and testimony in the case, Justice Horkins found that, although the complainant said she was acting under duress when she articulated “Let’s do it” before the sexual intercourse in her bedroom and she really didn’t consent ‘in her own mind’, it was “equally possible, if not more likely, that she was in fact freely and subjectively consenting”. The judge found that the defendant’s testimony was given in a straight forward and articulate manner and there was no reason to reject his testimony as untruthful or unreliable, and it gave him no reason to believe that the complainant did not consent to either intercourse.
Justice Horkins concluded that the evidence established a substantial basis for an honest and reasonable belief in consent. The onus is on the Crown to disprove the defendant’s mistaken belief in consent and in this case, they did not prove this required element of sexual assault beyond a reasonable doubt. On this basis, the charge of sexual assault was dismissed against the defendant.
As evidenced in the above cases, if there’s any doubt the defendant committed the criminal offence of which they've been accused, the case is decided in favour of the defendant.
If you need legal assistance or were charged with a criminal offence, get help from an experienced Toronto criminal lawyer at Yoannou and Associates.