A recent trial, R. v. Shields, involved a woman who alleged that a co-worker sexually assaulted her in the bathroom at their place of work. The complainant testified that the accused followed her to a bathroom, locked the door, then proceeded to sexually touch her without her consent. The accused agreed that the sexual activity did occur, but argued that the complainant was a willing participant and showed a willingness, in her words and deeds, to engage in the sexual activity.
The issue to be decided by the Court in this case, was whether the Crown proved beyond a reasonable doubt that the accused man sexually assaulted the complainant without her consent; or alternatively, whether the defence of ‘honest but mistaken belief in consent’ applied but was disproven by the Crown beyond a reasonable doubt.
As is common in many sexual assault cases, there was little physical evidence presented and the case rested mainly on the testimony of the complainant and the accused. As asserted by Justice Doherty in this trial, “a criminal trial is not a credibility contest”; rather, it is a trial to decide whether the prosecutor has proven the defendant’s guilt on a specific charge beyond a reasonable doubt. Nevertheless, in ‘he said, she said’ cases, the credibility and reliability of the opposing parties’ testimony evidence is hugely impactful on the verdict. And, given that ‘the assumption of innocence’ is a fundamental principle in the Canadian justice system, if the accused’s testimony evidence is perceived to be believable and reliable, and there is no other evidence to disprove it (including plausible testimony by the complainant), the requirement of proving guilt beyond a reasonable doubt obliges the Court to dismiss the charge against the accused.
In the context of their job, the complainant and the accused were often required to meet, and the accused was in a position of authority over the complainant although she didn’t report directly to him. The complainant testified that, prior to the alleged sexual assault incident, there were several occasions in which the accused turned the conversation into one of a sexual nature, such as telling her he was sexually attracted to her, and she attempted to ignore the alleged sexual harassment incidents. The accused, on the other hand, testified that the complainant would often drop by his office unannounced; they were both attracted to one another, and their relationship was increasingly flirtatious.
The accused testified that, on the day of the sexual assault incident, the complainant came to his office and pushed up against him, after which they embraced and had a lengthy conversation of a sexual nature. Later, when the complainant asked him to walk her to her car and mentioned that she ‘never got her hug’, the accused suggested that he knew where they could be alone and uninterrupted. When she agreed, he led her to a unisex washroom. The accused testified that, once inside the washroom, they began to passionately embrace, which led to mutual touching of her breasts and his genitals until he asked the complainant to stop because he was going to climax. They then both arranged their clothing and left the bathroom. The accused further testified that the complainant later phoned him and they talked about ‘how hot’ the encounter had been.
The complainant gave a different account of the sexual touching incident. She testified that she went to the accused’s office to update him on a work issue, and he then told her that he had something to discuss with her and directed her down a hallway to the washroom. She stated that she did not know where they were going until he led her into the washroom and locked the door. The accused then allegedly began kissing her and suggested they have sex. She said that she froze and did not respond. The accused then allegedly opened her blouse and fondled her breasts, and when he attempted to unbutton her pants, she replied “No…” and again said “no” when the accused suggested doing oral sex on her. Then, when she rearranged her clothing and began to leave, the accused allegedly pulled out his penis, placed the complainant’s hand on it, and asked her to put it in her mouth. She testified that she thinks she said “no’, but was frightened and shocked, and wanted to leave the washroom. The accused allegedly asked her not to tell anyone about the incident since it would be bad for him.
The complainant stated that she was in shock and felt gross after the sexual touching incident and also felt uncomfortable when the accused later phoned to say ‘how hot’ the event had been. The complainant continued working for the same employer and did not report the incident until a few years later when she became aware that another similar complaint was being made against the accused. At that point, she told only her friends and then sought legal counsel. The complainant’s lawyer advised her not to provide a formal statement to investigators. Therefore, she delayed reporting the incident to the police until about 1 1/2 years later.
Email evidence between the parties prior to the alleged sexual touching incident was also introduced in the trial. One of these was an email in which the accused told the complainant she should ‘… wear something special’ to a date next week. To this, the complainant replied that she was looking forward to it and that ‘just made my day…and weekend”. She also made references to the accused’s tan, which she stated was darker than hers. To this, the accused replied that it was “very cool” that he ‘made her weekend’ and further, “At least you don’t have tan lines (every man’s fantasy)”.
The only issue in Shields was whether the Crown had proven beyond a reasonable doubt that the complainant did not subjectively consent to the sexual touching incident.
The Criminal Code s. 273 defines consent as the “voluntary agreement of the complainant to engage in the sexual assault in question”. With regards to sexual assault offences, under section 272 and 273 of the Code, ‘no consent’ was obtained when, by words or conduct, the complainant expresses a lack of agreement to engage in the sexual activity or to continue to engage in the sexual activity after having previously consented.
In R. v. Ewanchuk (1999), the Supreme Court of Canada found that the ‘absence of consent’ is purely subjective: it is determined by the complainant’s state of mind towards the touching incident at the time it occurred (and not before or after). Only the complainant’s testimony is direct evidence for his/her state of mind; the accused’s perception of his/her state of mind is not relevant at this point.
The accused may claim that the words and actions of the complainant before and during the incident raise a reasonable doubt against the complainant’s assertion that she/he did not want the sexual touching to occur. However, if the judge believes the complainant’s testimony that she did not actively give consent, the Crown has discharged its onus to prove an absence of consent. In sexual assault offences, there is no recognition of ‘implied consent’, so the complainant’s state of mind before the touching is not directly relevant, as stated in Ewanchuk.
In his assessment of the evidence, Justice Doherty did not place any significance on the fact that the complainant continued to work at the same place and to have friendly interactions with the accused, as it was important to her career to maintain good relations and she could conceivably have been assigned to work under the accused. The judge also did not find it significant that the accused delayed in reporting the incident to investigators, particularly after being advised against it by her lawyer. Further, Justice Doherty found there was no evidence to support the defence’s allegation that the complainant and her partner made a false accusation in order to launch a civil claim against the accused and her employer to alleviate their financial difficulties at the time. Finally, although the judge found the emails discussing tan lines to indicate a flirtatious relationship existed before the washroom incident, he asserted that this had no bearing on whether the complainant gave consent to sexual touching.
It must be noted that the trial took place 8 years after the sexual touching incident, and the complainant and accused did not reassess the event until 4 and 5 years, respectively, after it occurred. Although both parties were perceived as intelligent, the judge acknowledged the effect on the reliability in the reporting of details due to such a delay. Yet, Justice Doherty found both the complainant’s and accused’s description of the incident and their relationship leading up to the incident to be plausible, although he found the circumstances leading them to end up in a unisex washroom to be somewhat odd and he did not know whom to believe.
The accused gave a very detailed account of what happened in the washroom. And when asked to repeat his description during cross-examination, he provided consistent details despite using different language. This led the judge to believe that his testimony was not scripted, and his evidence was reliable and credible. Justice Doherty found the complainant’s testimony to be largely credible; however, there were several gaps in her memory of the washroom incident which led the judge to believe her testimony was not entirely reliable.
In concluding, Justice Doherty found that both, albeit different, versions of the sexual touching incident were believable. However, in considering all the evidence, the accused’s testimony evidence raised reasonable doubt against the complainant’s assertions that she did not consent to the sexual touching incident in the washroom. On this basis, the judge found the accused ‘not guilty’. Therefore, the Court did not need to consider whether the defence of ‘honest but mistaken belief in consent’ applies in the case.
If you have been detained or arrested on a sexual assault or domestic assault charge, contact an experienced sexual assault lawyer at Kruse Law to ensure you are well informed of your legal rights and are provided with the strongest possible defence.