consent

Man Who Refused to Wear Condom Found Guilty

Written on Behalf of Affleck & Barrison LLP

Ontario Superior Court Justice Nathalie Champagne has ruled that if a man refuses to wear a condom against his partner’s wishes and after agreeing to do so, it is a sexual assault.  Anibal Rivera (“Rivera”) has been found guilty of committing sexual assault by proceeding to have unprotected sex after agreeing to wear a condom.

WHAT HAPPENED?

In October 2017, Rivera and a woman (who cannot be identified) met on a dating website and they agreed to meet at the woman’s home in Cornwall, Ontario for a sexual encounter. 

Prior to their “date”, the woman texted Rivera and advised him that condoms were mandatory and that “no means no”. Rivera agreed to these terms.

In court, the woman testified that during their encounter she repeated “her rules”, however, Rivera proceeded to have sex with her without a condom, insisting that he was “clean”.  He then left after a few minutes of small talk.

Rivera testified that the woman agreed to proceed without a condom as long as he did not ejaculate inside her. 

The woman went to the hospital the next day for an evaluation and various tests, including tests for pregnancy and sexually transmitted infections, and a sexual-assault kit.  A few days later, she contacted the police.

Rivera drafted a written statement before his first interview with police wherein he wrote that the woman had initiated unprotected sex.  However, on the witness stand during his cross-examination he admitted that he had lied in his written statement.

THE ISSUE OF CONSENT

The issue at trial was whether the complainant consented to intercourse without a condom.  Both the woman and Rivera testified in court.

In her ruling, Justice Champagne wrote:

This is a case of ‘he said, she said’ which raises issues of credibility and reliability.  … In assessing the evidence, if I believe the account of Mr. Rivera, I must acquit.  If I don’t believe Mr. Rivera but the evidence leaves me with a reasonable doubt, I must acquit.  If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt.  … Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability…

Although Justice Champagne did not believe Rivera’s claims that the complainant agreed to have sex without a condom, the Crown must still prove the alleged offence beyond a reasonable doubt.

The complainant testified to the following:

  • She agreed to a sexual encounter.
  • She insisted that condoms were required and “no means no”.
  • She told Rivera to put on a condom prior to intercourse and he didn’t.
  • She told Rivera to put on a condom a second time before the second act of intercourse and he didn’t.
  • Rivera had vaginal intercourse with her without a condom followed by forced oral sex, followed by vaginal and anal intercourse with her without a condom.

Justice Champagne found that the woman’s evidence that she insisted that Rivera wear a condom and would not agree to sex without it is consistent with the conditions she had described in her text to Rivera and consistent with her undergoing tests at a hospital the next day. 

The Judge found that the woman’s “evidence to be proof beyond a reasonable doubt that Mr. Rivera committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her”. 

Justice Champagne went even further to say that if there is any uncertainty that failing to wear a condom amounts to a sexual assault in these circumstances, the complaint’s consent was discredited by fraud. 

IMPACT OF THIS DECISION

Justice Champagne noted that she did not draw any negative conclusions regarding the fact that the Rivera and the woman made small talk after sex or that it took the woman a few days before contacting the police.  She stated:

It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act.  … It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one’s life involved in the criminal court process.

In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be OK. … I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.

Justice Champagne’s decision is being well-regarded as an example to be set to other judges in Canada. 

It is also in line with the proposed Bill C-337, introduced by former federal Conservative leader Rona Ambrose, requiring those seeking a federal judicial appointment to go through mandatory training on sexual assault law, including rape myths and stereotypes about victims and the impact of trauma on memory.

We will continue to follow any developments in the case law or legislation that may arise from this latest decision regarding sexual assault, rape myths and stereotypes in this blog.

If you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service for your convenience.

Changes Coming to Sexual Assault Provisions in the Criminal Code

Written on Behalf of Affleck & Barrison LLP

We have blogged extensively about sexual assault, as public debate about this offence continues to rage in light of multiple newsworthy events in recent years, and as the law evolves in recognition of changing norms.

Earlier this week, Canada’s Justice Minister introduced Bill C-51, which seeks to remove 20 criminal offences that are currently outdated or have been invalidated by court decisions, and clarify other exisitng provisions, including sexual assault provisions. The move is the Liberal government’s efforts to clean up the Criminal Code and other laws to accurately reflect changes in our understanding of critical issues.

Among the expected changes is an amendment that will explicitly state that a sexual assault complainant cannot consent to sex if they are unconscious, and that sexts or photos or videos cannot be used to discredit a complainant.

What Does This Mean?

Consent

The amended sexual assault provisions will not define or answer the question “how intoxicated is ‘too intoxicated’ to consent to sex”- that determination will remain in the hands of judges who will continue to make decisions on a case by case basis.

Currently, case law states that consent requires the ongoing, conscious agreement of both parties engaging in sexual activity while that activity is taking place. This should be clear, but unfortunately, it is not always, and consent or the credibility of one or both of the parties becomes the primary issue in sexual assault proceedings.

Rape Shield Provisions

Additionally, under current rape shield provisions, a complainant’s private medical records are not admissible at trial, unless the accused can establish that the records are critical to disproving the allegations, or vital to the accused’s constitutional right to a fair trial. However, the medical records cannot be used to support an accused’s claim that the complainant is somehow blameworthy in the alleged assault, more likely to have consented to sexual activity, or less credible.

The proposed changes would add emails, texts, other communications, as well as other personal records (e.g.: diaries, counseling records) to the list of records that are inadmissible under rape shield provisions.

The proposed changes would also clarify that sexting as well as emails, pictures, or videos with sexual content sent before or after an alleged assault could not be used against a complainant, and would also be subject to rape shield provisions.

Legal Counsel for Sexual Assault Complainants

The Bill also provides that sexual assault complainants have a right to their own legal counsel where rape shield questions are at issue. A judge would have to inform the complainant of that right and be required to consider their objections to having their private records and communications heard in court.

“Mistaken Belief”

The proposed changes would also codify existing restrictions on when an accused can use the defence of an “honest, but mistaken belief” that the complainant consented to sex. For instance, it is not legally possible to claim that the complainant’s failure to resist or protest meant that there was consent. Similarly, an accused cannot claim ignorance of the law or misunderstanding of what consent entails.

We will continue to follow the progression of this Bill and will blog about updates as they become available. In the meantime, if you have been accused of sexual assault or any related charges, contact the Oshawa criminal defence lawyers at Affleck & Barrison LLP online or at 905 404 1947. We offer 24-hour phone services and a free confidential consultation and we are available when you need us most.

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Ontario Judge Finds Woman Was Too Intoxicated to Consent to Sex

Written on Behalf of Affleck & Barrison LLP

Following a four-day trial, Moazzam Tariq, a 29-year-old Brampton man, has been found guilty of sexual assault after a judge ruled that his victim was too drunk to consent to sex.

The case raises important questions about when a person becomes incapable of granting informed consent while still conscious. The case is also unique as it involved telling video surveillance footage that became instrumental in the Judge’s final decision.

What Happened?

The complainant testified that she awoke alone in a hotel room. She had no recollection of where she was or how she had gotten there, but that she “felt violated” and knew that she had been penetrated. She reported a sexual assault to police. Within a few weeks, the police arrested Tariq, based on surveillance footage from the nightclub the complainant had been at that evening, as well as from the hotel.

The Crown

At trial, the complainant did not dispute that she went to the hotel with Tariq, however has no recollection of getting there, and very little recollection of the evening. She testified that she had had only a vague memory of someone hovering over her in the hotel room. She recalled saying “no” two or three times, but did not remember saying yes at any point. The results of a sexual assault exam had revealed semen in her vagina matching Tariq’s.

Surveillance video from both the nightclub and the hotel was obtained by the Crown, and played at the trial. The first video shows Tariq pouring alcohol down the complainant’s throat straight from the bottle twice, slapping her on the bottom as he helps her to her feet, grinding up against her, and holding her up as she staggers towards the door. Video from the hotel a short time later show the complainant leaning heavily against Tariq as he escorts her through the front door, and later shows her in the elevator with her eyes half open, slumped against the wall.

Both surveillance videos can be seen here: http://bcove.me/x7bfv2hf

The Defense

Tariq did not testify in his defence. His counsel argued that video does not allow for an accurate assessment of a persons’s state of mind or their decision making capacity. A toxicologist testified that poor motor skills do not necessarily mean that someone is “cognitively impaired’. The defence further argued that the complainant displayed deliberate, conscious decision making while at the nightclub (refusing drinks, and not wanting to dance) as well as an awareness of her surrounding (keeping track of her cellphone and purse, adjusting her clothing). According to defence counsel, this means that deliberate, conscious decision making could also have taken place later that evening in the hotel room where the sex took place. Lastly, defence argued that there is no way to know when precisely the sex took place between the parties’ arrival at the hotel and Tariq’s departure in the morning.

The Judge

Justice Mara Greene found that the complainant lacked the capacity to consent to sex with Tariq, a “virtual stranger”. She further stated that it defied “common sense” that the parties would have stayed awake for hours and then had sex, or that the complainant had fallen asleep, woken up, and then had sex, based on the short time the parties spent together, their lack of conversation, and the complainant’s unresponsive manner.

Justice Greene further stated:

In my view, the only reasonable inference from all the evidence is that [the complainant] was disoriented, confused, not aware of what was really going on around her and not capable of making voluntary informed decisions.

The test for granting informed consent is whether the person in question can understand the risks and consequences of sex and have the ability to realize that he/she can refuse. The threshold is quite high, as only a “minimal cognitive capacity” is required to consent to sex.

In this instance, Justice Greene was ultimately satisfied beyond a reasonable doubt that

…[the complainant] did not appreciate where she was or what she was doing…[she] did not realize she could refuse to go with Mr. Tariq and say no to sexual intercourse.

Moreover, Justice Greene found that Tariq knew that the complainant could not consent, or was wilfully blind to the fact that she could not. However, since he did not testify, there was no basis to make a conclusion as to whether he had a mistaken belief that the complainant had consented to having sex with him.

Ultimately, the video surveillance did not provide sufficient evident to find that the complainant did not consent to sex with Tariq, but was sufficient to establish that she was to intoxicated to have the ability to consent to sex, and that Tariq clearly ignored those signs.

Ultimately, Justice Greene found Tariq guilty of sexual assault. He will be sentenced on December 1.

Importance of the Video Evidence

Certainly in an age of social media, camera phones, and generally increased availability of video footage, this case may set an important precedent.

The introduction of video evidence in a sexual assault case is rare. In this case it played a critical role in establishing reasonable doubt with respect to the complainant’s ability to consent to sexual activity. The Judge relied almost entirely on the surveillance footage to demonstrate the complainant’s lack of capacity to made decisions at crucial portions of the evening.

If you are facing sexual assault or related charges, contact the skilled defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.