WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice At 1911 Eglinton Avenue East, TORONTO, ONTARIO

Her Majesty the Queen v. M.M.

Reasons for Judgment

Before the Honourable Mr. Justice P. Downes on May 9, 2013, at TORONTO, ONTARIO

Appearances

• J. Mannen – Counsel for the Crown
• C. Penney – Counsel for defendant

Decision

P.A. Downes J.: (Orally)

The Charge and Facts

M.M. is charged with sexually assaulting M.A. It is alleged that on August the 24th, 2012, they, along with some colleagues from work, went for drinks at Jack Astor's, a bar close to their office, after which M.M. and M.A. walked together from the bar to the local rapid transit or LRT train station, a walk of some five to seven minutes.

The Crown alleges that during that walk M.M. sexually assaulted M.A. by kissing her, placing his hand down the front of her pants and putting her breast in his mouth, all without her consent.

M.M. testified and, while agreeing with some aspects of M.A.'s version of events, disagreed on the fundamental nature of the alleged assaults. According to him, there was a brief sexual encounter, but it was one initiated by M.A. and was therefore fully consensual.

I also heard evidence from M.A.'s sister and her common-law partner, both of whom testified briefly about M.A.'s condition on the night in question after she arrived home.

Legal Framework

In order to succeed on this prosecution, the onus falls on the Crown to displace the presumption of innocence which attaches to M.M. throughout these proceedings, unless and until the Crown proves his guilt beyond a reasonable doubt. That is a heavy burden of proof and it never shifts.

The accused has no obligation whatsoever to establish his innocence.

M.M. is charged with sexually assaulting M.A. In order to establish this offence, the Crown must prove all of the following essential elements beyond a reasonable doubt: first, that he intentionally touched M.A. in circumstances of a sexual nature that compromised her sexual integrity; second, that M.A. did not consent to this touching; and, third, that M.M. knew that M.A. was not consenting to the touching or was reckless or willfully blind in relation to whether or not she was consenting. See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293.

The parties agree that there was an intentional touching of a sexual nature, satisfying the first element of the offence.

The single issue to be determined on this trial is whether the Crown has proved beyond a reasonable doubt that the sexual context that occurred happened without M.A.'s legally valid consent.

On M.A.'s version of events, there would be no question that M.M. committed the offence of sexual assault. On M.M.'s version of events, it would be equally clear that there was no unwanted touching and therefore no sexual assault.

Judges are not endowed with the ability to know the ultimate truth as to what happened in any particular case. Indeed it is not my role to make a final determination as to exactly what happened between M.M. and M.A.

Rather, my role is to determine through a careful assessment of the evidence and applying reason and common sense whether the Crown has established M.M.'s guilt beyond a reasonable doubt. Each witness is entitled to a fair, reasonable and even-handed assessment of their evidence. Particularly in a trial such as this where two different versions of the same events are presented, a judge must be guided by a careful assessment of all of the evidence and, in some cases, the lack of evidence and by certain fundamental principles applicable in all criminal trials. As the accused has testified in this case, one of the applicable principle in assessing whether or not the Crown has proved his guilt beyond his reasonable doubt derives from the Supreme Court of Canada's judgement in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

In other words, first, if I believe the testimony of the accused that he did not commit the offence for which he is charged, I must find him not guilty. Secondly, even if I do not believe the testimony of the accused, if his testimony leaves me with a reasonable doubt as to his guilt, I must find him not guilty. And third, even if his testimony does not leave me with any reasonable doubt as to his guilt, I may only properly find him guilty if, based on the evidence I do accept, I am satisfied beyond a reasonable doubt of his guilt.

The application of these principles ensures that reaching a verdict does not devolve into a mere credibility contest between the two main witnesses and ensures the proper operation of the presumption of innocence and the Crown's burden of establishing the guilt of the accused beyond a reasonable doubt: see R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5.

Review of Evidence

Background and the Evening at the Bar

At the time of these events, M.M. and M.A. had been co-workers with the same company for some 11 years. Some years ago, M.M. was in an intimate relationship with M.A.'s mother. On Friday, August the 24th, 2012, M.A. was invited by co-workers to go for drinks after work at Jack Astor's across from their office and near the Scarborough Town Centre. There were about eight of them there. M.A. agreed that she had a good time that night and that there was nothing inappropriate going on at all between her and M.M. while inside the bar, nothing he did gave her any concern at all.

M.A. did not eat anything while at the bar, but she had five or six martini-based drinks, one of which may have been a double. She was, she said, drunk, but coherent. She did not pass out and could walk and stand up without support.

At the time, M.A. was five foot three and weighed about 120 pounds, but she agreed that she drank a significant amount of alcohol for her and that, upon leaving Jack Astor's, she was probably more drunk than would typically be the case for her. She also agreed that the consumption of alcohol that night affected her perception of and ability to register, as well as her memory of events, but she denied she would do things on impulse when drinking, although she may have done so at some point in the fourteen years since she was of legal drinking age.

In cross-examination M.A. testified only that her alcohol consumption impaired her ability to respond more clearly and decisively to M.M.'s unwanted touching, as she put it, "I don't think alcohol uninhibited me in a way that it allowed me the complete freedom to speak my mind."

The Walk to the Transit Station

At around nine or nine-thirty, M.M. and M.A. left the bar to walk together to the local RT station. She suggested that they cross the street and cut through the parking lot, her normal route from Jack Astor's to the TTC. M.M. suggested that instead they should double back and go to the McCowan Station. Even though that was not her usual route, M.A. went because, she said, she was with someone she trusted as a co-worker.

It was their intention to get to the McGowan Station by going up some stairs to a pedestrian walkway covered in plexiglass which takes one over the road to the station, shown in exhibit one, a Google satellite photo of the area. There was no one else in the tunnel during this time.

M.A. was on her way to her home near the Victoria Park Subway Station. M.M. was going to his house.

They reached the covered walkway, walking and chatting, and then proceeded to the end of the covered walkway to the top of some stairs going down to the RT Station, shown in exhibit three. M.A. testified that all of a sudden she was pinned up against the cement wall to her surprise and M.M. started kissing her. At this point she said, "No, I have a boyfriend," but he kissed her again. M.A. agreed that her statement to the police only appeared to talk about a single kissing incident. She said that she was, in fact, describing both kisses as one action.

When M.M. kissed her for the second time she said, "No, you used to fuck my mom," to which he replied words to the effect of, "That made it hotter or more exciting and hadn't I ever wondered what this would be like." She made what she called a glib comment about, "Yeah, I'm sure you must be great in the sack" which she said she made with a shocked and sarcastic tone of voice.

M.A. testified that she was in absolute shock. It was the last thing she ever expected because M.M. was a co-worker and someone whom she considered a friend and someone who used to be in a relationship with her mother. She said M.M. was the last person in the whole world she would expect this from.

M.A. testified that M.M. then put one of his hands down the front of her pants where the fly would be. She was not wearing a belt, so there was room for his hand to slide down. She was not wearing any underwear. M.A. then said to him, "No, I haven't shaved," and pulled his hand away. He then lifted up her shirt and pulled on the cup of her bra and put his mouth on her breast, again without her permission or invitation.

She could not recall saying anything to M.M. as this was happening.

M.A. testified that she reached for M.M.'s hand and pulled him away, grabbing his hand and saying, "Let's go" and motioning down the stairs. She said she just wanted to get out of there and grabbed his hand to remove it, but continued to hold it so that she could lead him to a public area.

Mr. Penney put to M.A. that when she said she grabbed M.M.'s hand and led him down the stairs that, in fact, she said to him simply that she had to go and went down the steps ahead of him before going back to get him and lead him down the stairs. She disagreed with that suggestion. She also initially disagreed that she could simply have got away from M.M. According to her, M.M. ran marathons and would easily outrun her, so she felt safer holding his hand all the way to the RT station. She felt, at that time, that she was leading him to an area of safety because she did not know what he might do next.

M.A. ultimately agreed under counsel's persistent cross-examination, however, that she could simply have walked away from him and left him behind in the stairs.

In re-examination M.A. testified that her frame of mind at the time was one of simply wanting to get out of there to a safe, well-lit area and wanting to get home because this was going to be a nightmare at work after what M.M. had done to her.

According to M.A., as they walked to the station from the stairs, they talked about how she does not cheat on her boyfriend and, while she has an open relationship and may "play with other women", she does not sleep with other men and doesn't do anything without discussing it with her boyfriend first.

M.A. and M.M. proceeded through the turnstile at the entrance to the station and onto the platform to wait for the train.

Mr. Penney suggested that, while on the platform waiting for the train, M.M. said to her: "I cannot believe we're having these conversations. It must be the alcohol," to which she was said to have replied: "Well, you know what they say about alcohol." M.M. testified to such a conversation between them; M.A. did not recall it.

They got on the train and, as the train chimed for the doors to open at M.M.'s stop, he stood up and, according to M.A., turned around, grabbed her wrist and pulled her off the train. The doors closed and they were at the top of the stairs at the Lawrence RT station.

M.A. denied the suggestion that M.M. had told her to get off the train just to go to the washroom because she needed to urinate. She said that he pulled her, not with such force as to cause her to fall over, but it was clear that it was not a grabbing simply in order to help her or lead her. According to her, she was pulled off the train.

M.A. testified that M.M. propositioned her into having an affair saying that no one needed to know and it would just be between the two of them. He wanted her to come with him right then and there, but she refused. She had no intention, she said, of leaving the train station with him. He held her wrist throughout this conversation until another train pulled in, at which point she broke free and said: "Yeah, yeah, I'll think about it."

She got on the train and started texting her sister saying she needed to talk with someone because she was so traumatized and in shock, hysterical. Getting off the RT train at Kennedy Station to get on a subway train, a passenger stopped M.A. because she was crying to ask her if she was okay. M.A. said she was not. From there it was two stops to Victoria Park Station where M.A. got off the subway and walked to a gas station to buy cigarettes, after which she called her sister crying hysterically telling her what had happened. She said she wanted to call her boyfriend, but he is a chef and she knew that he would not answer his phone at work. When he did get home she told him everything that had happened and she said he was wonderful and very supportive to her.

On the Sunday she went to travel to New York City with her sister for a few days, going back to work the following Thursday.

At that time, M.M., she said, came to her desk at lunchtime and asked her how her trip was. She gave some brief answers, eventually saying that she was not in a very good mood because she had had a "crappy" Friday night, as she put it.

M.A. stayed at work that day and, later that night, went to a baseball game with some co-workers. M.M. was there, but she did not drink, she did not speak to him and said she did not sit near him. She declined the invitation to go back to the same Jack Astor's, saying she was tired from her travels, testifying that she did not want to go back to the same place where she said all of this started.

Eventually, after the long Labour Day weekend (the following weekend) M.A. reported this matter to the police. She had written a statement for herself before going to the police and giving a K.G.B. video statement on September the 5th, 2012.

M.A. testified that her memory of that evening was good.

Evidence of M.A.'s Sister (R.A.)

R.A. is M.A.'s sister. The Crown called her as what has been come to be known in these type of cases as a "demeanour witness", in other words, to relate her observations of a complainant's demeanour at or around the time of the incident.

R.A. testified that on the night of August the 24th, 2012, her sister called her somewhere between 7 and 10 p.m. Her best recollection was that it was about 8:00 p.m., but she agreed it could have been later. She did not think they had exchanged text messages first.

When her sister called her, she was extremely upset and distraught, crying. It was not R.A.'s impression that her sister was slurring or incapacitated or overly affected by alcohol, but that she was more upset than anything else. She was, she said, coherent and R.A. could understand her without trouble.

Over the course of the conversation, however, R.A. described her sister as upset and hysterical and that it took five minutes to calm her down and get her to tell her what had happened. As she put it, "I've never heard her so upset."

In cross-examination R.A. said that they had spoken about M.M. trying to kiss her and that he had put his hands down her pants.

On January the 13th, 2013, R.A. gave a statement. In that statement, she told the officers that her sister had said she had "ran off" and went to the RT after the incident.

R.A.'s memory of exactly what her sister had actually told her, however, was not great. She did not want to push her sister to relive what had happened and was more concerned about her safety. She was asked the precise words her sister used, but could not recall them with any precision. She said she was very doubtful that the phrase "she ran off" was her sister's words as opposed to hers. She was pretty sure her sister didn't say it just happened and then she ran off.

Evidence of M.A.'s Common-Law Partner (M.B.)

M.B. is a chef in Toronto in the Queen and Broadview area. He is M.A.'s common-law partner and they have been in a relationship for about six years. He was at work on the evening in question when he noticed a series of missed calls on his cell phone from M.A. He called her back and spoke to her. She was distraught, but he did not want to ask her any details at the time. She simply asked him to come home and he did, leaving work immediately and going home in a taxi.

M.B. testified that M.A. rarely called him at work as it was very difficult for him to take calls while he was working. When he got home, he said M.A. was sitting on the couch and was rather hysterical. He said he had never seen her like that. He asked her what was wrong and he knew that she had been out at a work function at a bar close to her work and assumed she had been drinking. She was, however, he testified, coherent and lucid, although she was, he said, hysterical.

M.B. also gave a statement on January 13th, 2013 in which he agreed before me that he had told the police what M.A. had told him on the night in question. When asked in cross-examination, he agreed that she had told him that one of her co-workers, M.M., had made an aggressive pass at her and had tried to escort her home. He could not recall exactly what she had told him after that, but did recall that she had said the incident started at the bar, but continued towards the RT station in Scarborough when he tried to remove her from the station, but she stayed inside and continued to take the train home.

M.B. testified that M.A. had told him that inside the bar, outside of the washroom, is where the first act occurred, but he could not recall before me exactly what she had said had happened outside the washroom.

Evidence of the Accused (M.M.)

M.M. testified in his own defence. He has been visually impaired since the age of 17 and, although he is entitled to use a cane, he does not do so out of an effort to remain as independent as possible. He compensates for his disability by learning his surroundings very well and by concentrating carefully while walking. He testified that, while at Jack Astor's bar, everything happened in the manner described by M.A. and as depicted in the video exhibits. Upon leaving the bar at around nine o'clock, M.M. agreed he was intoxicated. He had drunk two double Long Island ice tea, followed by four or five pints of Guinness over the previous three to three and a half hours.

M.M. was six foot three and weighed approximately 180 pounds at the time. He testified that he could not recall ever drinking too much to the point of difficulty and, although he would drink on a regular basis, and typically consume about the same amount as he did that night, he was careful not to drink beyond a certain level because of his visual impairment and the need to maintain an ability to navigate safely.

On the night in question, he agreed that the alcohol would have affected his perception and his ability to recall events, as well as his judgment and his ability to register events correctly. He agreed with M.A. in terms of the route they took walking to the station after leaving Jack Astor's.

According to M.M. he had initially arranged a ride home with somebody else, but when he realized that M.A. did not have a ride home he considered it impolite for her to walk to the transit station by herself, so she agreed that he could accompany her there. They walked together along the south side of Progress Avenue when she said to him something to the effect of, "I'm hammered M.M., how do you keep up with these kids?" to which he responded: "I'm pretty mashed myself." He could not say exactly where they were when they had this conversation, but it was around the point of the first traffic signalled crossing.

As they were about to cross the road, M.A., he said, was a step ahead of him and he was hesitant to cross. So, she came back and took his hand. The two of them continued to cross the street holding hands each time they were about to cross a roadway. He had not held hands with her before, although he may have done the same with a co-worker in the past.

A couple of minutes later on the way to the station, M.A. said to M.M.: "So, tell me, M.M., when I come over to say goodbye to you in the evening, do you see me or do you see L.?"

M.M. testified there may have been some other conversation in between, but he could not remember what it was.

M.M. interpreted M.A.'s comments as being somewhat insecure, so he told her that she was "a nice lady" and that lots of guys liked her.

In cross-examination he said that, at this point, they were walking between the last traffic light and the entrance to the covered walkway or the bubble as it was referred to.

At this point, according to M.M., M.A. let go of his hand and became argumentative, saying, "Who? Who? Name one guy. Name one. When guys look at me, all they see is a dyke bitch." M.M. said he did not know how to respond to this.

Their conversation continued and, according to M.M., he said, "I see you, but you and L. share some of the same qualities," to which she responded, going ahead of him and saying, "I knew it. I knew it."

M.M. testified there was a lull in the conversation and then they continued walking, after which she said to him, "You're good, M.M. You're good. L. still pines over you every day." He replied that he and L. were just good friends. At this point she was in front of him and said something to the effect of, "Oh no, oh no. I remember showing up at L.'s place one night and she came downstairs and said there's a man upstairs in your father's room and his name is M."

M.M. testified that that incident at L.'s house may have happened and agreed it's possible that it was her sister who was there when this incident occurred. That was not put to R.A.

The two of them continued walking and by then they were close to the top of the stairs, at which point, M.M. testified, that M.A. said, "You must have eaten that pussy like a champ, M.M. What you have down there, you know how to use it. You know how to handle yourself well." He described her voice as a lower tone when asking questions, but when exclaiming things was louder and used hand gestures in his face. He did not see this as confrontational, only an attempt by M.A. to make her point.

At this point, M.M. testified, he was leaning against the bubble and she was standing directly in front of him. There was a moment of silence, after which M.A.'s head came up and she kissed him, forcing her tongue into his mouth. M.M. testified that he kissed her back, putting his tongue in her mouth. He agreed that he bent down a little bit to do that. He was a little surprised. She was rubbing his shoulder and, M.M. testified, he started to put his hand up her shirt. She lifted her shirt up exposing her breasts and pushing them towards him, saying to him: "These are better than L.'s."

He bent down and put his mouth on her breast. According to M.M., M.A. held her breast to facilitate him putting it in his mouth. After that, M.M. testified, he tried to blow in her ear. She giggled and said, "Don't do that. That makes me giggle," or "I don't like that," so, he stopped.

M.M. tried to put his hand down towards M.A.'s pants, but she backed away a step or two and went down the stairs. He was unsure of his orientation to the stairs, so she came back, took his hand and, he said, they went down the stairs together while she said to him, "Let's go, M.M."

At that point, M.M. testified, M.A. started talking about the last time she cheated on her boyfriend - that it was with a woman and how it was easier to cheat with a woman as opposed to a man. Those conversations, she said, took them into the McCowan station still holding hands. When they got to the turnstiles, M.M. testified, M.A. went in first and waited for him before he swiped his card and went through.

They took the stairs up to the platform where they sat down side by side. M.A. continued to talk about the differences between cheating on men and women, at which point he said, "I can't believe we're having these conversations. It must be the alcohol." M.A. replied, "You know what they say about alcohol."

According to M.M., the train arrived and they sat down talking about her impending trip to New York. His stop was coming up and he said, "Let's get off here" as she had to use the washroom. According to him, he suggested that she get off there to see if there was a washroom and also to have a conversation about continuing their relationship another time. When his stop came, he took her by the hand and they got off together. He did not hold her hand for very long.

The two of them went out through a door through the ticketed area, but there were no washrooms, so they went back to the platform. As they were standing on the platform, M.M. was leaning against a rail and M.A. continued to talk about breaking up with a man as opposed to a woman.

According to M.M., M.A.'s speech was slurred and started to get embarrassing. As the train came she said, "I'm going," and that she would see him at work on Thursday.

M.M. testified that over the entire period from leaving Jack Astor's to when they left each other, M.A.'s emotional state was one of being very talkative, that she carried most of the conversation, and was very passionate about certain points she was trying to make.

Analysis and Findings

The Crown submits that M.A.'s evidence was clear, cogent and credible and that I should accept it as providing a sufficient basis for finding M.M. guilty beyond a reasonable doubt.

I accept, of course, that a conviction of an accused may, in appropriate cases, be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. See R. v. J.(J.R.D.), 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.).

I must, of course, also carefully consider M.M.'s evidence. If, as I have outlined, it is capable of raising a doubt, then M.M. is entitled to the benefit of that doubt.

M.A. was, generally speaking, a credible witness. I do not accept, as Mr. Penney suggests, that her emotional reactions while testifying were necessarily, as he put it, "over the top." For sure M.A. was at points distraught while testifying. There are many possible reasons for such a reaction by a witness while on the stand. Particularly in a case such as this, it is not something from which I draw any adverse inference against M.A. Standing alone, M.A.'s account would provide a sufficient basis to find that she had been sexually assaulted by M.M. By her own admission, however, it may well be the case that her perception and recollection of what occurred could have been tainted by what, in my view, was a significant amount of alcohol consumed over a relatively short period of time. She fairly and reasonably conceded that her judgment may well have been impaired by alcohol.

Having carefully considered the testimony of M.A., I conclude that this is not an appropriate case in which to wholly reject the testimony of the accused on that basis or on the basis that I accept her evidence unreservedly.

In considering M.M.'s evidence, I was unable to detect any area in which his version of events was undermined to any appreciable degree under cross-examination. He, like M.A., conceded several points put to him by opposing counsel. I found his evidence to be generally consistent and given in a manner that did not suggest any exaggerated attempt to vilify M.A. Undoubtedly his perception of events may also have been clouded by alcohol. That factor inevitably, in my view, is a lingering feature of the evidence of this trial in attempting to determine the accuracy of both versions of events.

In addition to M.M.'s evidence, I must also consider the impact of the other Crown witnesses in this case.

R.A.'s evidence does not add significantly to my assessment of the truth of what her sister testified to. It does establish that her sister was very distraught when she spoke to her on the night in question; Mr. Penney concedes as much. Although she could not remember the precise date of the conversation, R.A. clearly anchored it to her sister's description of what she said M.M. had done to her and there could be no reasonable suggestion she was referring to something else. I accept R.A.'s evidence as truthful and accurate.

I was also impressed by M.B. He struck me as a careful and truthful witness as well as someone who provided loving and compassionate support to M.A. on the night in question. I was, however, troubled by one aspect of his evidence.

As I have already described, M.B. gave a statement on January the 13th, 2013, in which he agreed he had told the police what M.A. told him on the night in question. M.B was clear and indeed was unchallenged on his evidence that M.A. had described M.M. fondling or attempting to fondle her outside the bathroom in the bar before they left to go to the train station.

M.B was cross-examined on this. It was his evidence, again unchallenged, that when he told the police this in January of 2013, he was simply telling them what M.A. had told him on the night of August 24th. Clearly his evidence provides a basis to find, under section 11 of the Canada Evidence Act, that M.A. had made a prior inconsistent statement which departed from her evidence before me.

That statement was put to M.A. She did not categorically deny having said that to M.B. as she put it, it was "news to her" that she had said to M.B something she could not recall doing when she testified before me. As its witness, clearly the Crown naturally was not in a position to challenge M.B.'s veracity on this issue.

Since M.A. could not recall making the statement to M.B. about what happened inside the bar, in order to find that it qualifies as a prior inconsistent statement, I must be satisfied on a balance of probabilities that she did in fact say that to M.B. His evidence on that point, as I have said, went unchallenged.

The Crown says I should not be satisfied that he was accurate in reporting his conversation with M.A. to the police because it simply makes no sense that she would tell him something that neither she nor M.M. say happened. There would be no reason for her to fabricate that piece of the story to M.B.

The Crown's submission is an attractive one, but ultimately I am not satisfied that the conclusion Ms. Mannen urges on me is one that flows logically from all of the evidence before me. That evidence was of a significant amount of alcohol consumed by both of these individuals, but particularly by M.A. which she admitted had an impact on her beyond her normal level of tolerance and which was consumed on an empty stomach over a shorter period of time than is her normal practice. That evidence and the unchallenged aspect of M.B.'s evidence, a witness I find to be credible and reliable and who was in an entirely sober and highly focused condition, concerned as he was about his partner that night, compels the conclusion on a balance of probabilities that M.A. did tell him, as he reported, that M.M. had tried to put his hands down her pants while inside the bar.

I should add that M.B.'s description to the police of what M.A. told him was precise, referring not simply to what happened, but to the specific location in the bar of the alleged touching. As he described M.A.'s report in his statement to the police which was made exhibit nine:

She was coming out of the bathroom and she had, uh - he had accosted her and tried to, uh - put his hands down her pants or something like that, something to that degree to which she - she kind of pushed him off and, uh - tried to continue with the evening, but, uh - from my understanding it got worse after they left the restaurant.

In my view, the impact of this prior inconsistent statement is significant. Not only is it directly contrary to M.A.'s version of events thereby inevitably raising concerns about the reliability of her memory, it also undermines her evidence with respect to both her and M.M.'s conduct that night, particularly as it relates to their decision to leave the bar together. It may have made no sense for her to tell M.B. that, but that is precisely the point; it impacts on her reliability.

Further, on several occasions in cross-examination, M.A. agreed that, although she could not recall making certain statements put to her by Mr. Penney and described by M.M. in his evidence, she could have made them. I was struck by the frequency of her responses in this regard.

In that respect, I believe that M.A. was being honest in admitting that she could not in fact recall whether she had said certain things. But those occasions, along with the prior inconsistent statement to M.B., raise concerns about her reliability.

While R.A.'s evidence as to what M.A. told her is capable of the same analysis with respect to a prior inconsistent statement, I am not satisfied on the balance of probabilities that M.A. told her that she simply ran away after the incident in the tunnel. R.A. was very uncertain about whether she had accurately reported her sister's comments to the police, and it would be unsafe to rely on her evidence to establish that M.A. had, in fact, said to her when they spoke on the telephone on the night of August 24th that she had ran away.

I was also troubled by M.A.'s evidence about why she decided to lead M.M. by the hand from the top of the stairs to the station after she said she had been assaulted. While I accept that, as the Supreme Court of Canada put it in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, "There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave," it is nevertheless the case that M.A. agreed, admittedly under a vigorous cross-examination on this point, that she could have simply stepped aside and down the stairs. The photo of the tunnel in exhibit three shows that at the bottom of those stairs is a roadway with cars, and the map shows it is next to a busy parking lot. It is far from clear to me how M.A.'s conduct and her explanation for it immediately after what she said happened at the top of the stairs makes any sense in the circumstances.

I am left, therefore, with a version of events described by M.A. tainted to a certain extent both by the evidence of the amount of alcohol consumed, its impact on her, her explanation of her conduct, her concessions that she may not have recalled several things and by what I view to be a significant prior inconsistent statement to M.B. Set against that, I have M.M.'s evidence, which was not undermined to any appreciable degree in cross-examination and which was not flawed by any particularly incredible or problematic version of events.

In saying that, I am not finding that M.M.'s account of what happened was exactly how things unfolded, nor am I saying that I believe M.A. has been deliberately untruthful in relating her version of events under oath. I am simply unable, on this record, to be satisfied that the Crown has proved the non-consensual touching beyond a reasonable doubt.

I return to the principles I articulated at the outset of my reasons. There are inconsistencies in the evidence. It is not my task to resolve every factual mystery presented in this case or to decide on which version of events is an accurate description of what actually happened that evening. Sometimes, as in this case, that determination is simply elusive. My task is to decide on all of the evidence whether the Crown has proved its case beyond a reasonable doubt.

Second, I am obliged to apply the principles in R. v. W.(D.). Doing so can only lead to one conclusion: M.M.'s evidence raises a reasonable doubt in my mind. Having done so, he is entitled to the benefit of that doubt and must be found not guilty.

Certification

THIS IS TO CERTIFY THAT

the foregoing is a true and accurate transcription from my recordings made herein, to the best of my skill and ability

Linda McDonnell, Certified Court Reporter.

DATE TRANSCRIPT ORDER RECEIVED: May 13, 2013

DATE TRANSCRIPT COMPLETED: July 3, 2013

DATE ORDERING PARTY NOTIFIED: July 3, 2013

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Linda McDonnell, and, accordingly, are in direct violation of Ontario Regulations 587/01 of The Courts of Justice Act, January 1, 1990.