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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Between:
Her Majesty the Queen
— and —
S.A.A.
Before: Justice Alan D. Cooper
Heard on: January 30, March 25, 31, April 1, 2, 3, 4 & 9, 2014
Reasons for Judgment released: May 27, 2014
Counsel:
- Monica A. MacKenzie for the Crown
- Ayeman Kenawy for the accused S.A.A.
Introduction
1S.A.A. is charged that, between the 13th and 14th days of July 2012, at the Town of Oakville, he committed a sexual assault on K.S., and on the same day at the same place, without lawful excuse, entered, or was in the dwelling house of K.S. at B[…], Oakville, with intent to commit an indictable offence therein.
Missing Evidence Application
2The trial commenced on January 30, 2012, and evidence was heard concerning the taped statement of the complainant, K.S., taken on the morning of July 14, 2012. As one officer interviewed her, a second was monitoring the tape and making notes. It turned out later that the videotape had no audio on it. The defence has brought a motion under sections 7 and 24(1) of the Charter of Rights and Freedoms to stay the proceedings because the Applicant's right to full disclosure, and to make full answer and defence has been infringed.
3As Halton Regional Police Service officer Phil Campbell was interviewing the complainant, officer Tom Zafiridis was in a separate room. He was to monitor the video of the interview and make notes. Officer Zafiridis testified that the video and audio were functioning properly during the entire time in which the statement was taken. This was from 8:10am to 9:14am. He made a handwritten seventeen page summary of the interview. They were not verbatim notes and were meant to describe key events from the interview.
4Officer Campbell gave evidence that toward the end of August, 2012, he was told by an administrative assistant, who was preparing an electronic brief, that the audio part of the tape was missing. It is not clear why this occurred and in their lengthy police careers, neither officer had ever had this happen before.
5The submissions of counsel and a ruling on this application was deferred until after the remaining trial evidence was heard.
Issue Concerning the Correct Age of the Defendant
6The remaining evidence was to be heard on March 31, 2014, but on March 25 the Crown advised the court that defence counsel had very recently told her that the defendant may have been a youth at the time of the alleged offences. His immigration documents stated that he was born on […], 1993, but his school records in Ontario put his age as […], 1995. This means that as of the date of the alleged offences, July 13 and 14, 2012, the defendant could have been 17 years old, and not 19. If correct, as the defence has asserted, then the defendant must be tried in Youth Court. The police and Crown had relied on […], 1993, as the correct date of birth, and the charges were laid in adult court.
7The evidence on the age issue was heard on March 31, and April 1, 2014, and submissions were heard. A ruling was delivered on April 2nd, and it was held that the Crown had proven beyond a reasonable doubt that S.A.A. was born on […], 1993, and was an adult at the time of the alleged offences.
The Remaining Trial Evidence
8On April 2, 2014, the complainant K.S. gave her testimony. She stated that she was 17 years of age at the time of this incident, and was a high school student. She lived with her mother and father and younger sister in a townhouse complex on B[…] in Oakville.
9On Friday, July 13, K.S.'s parents left their residence in the early afternoon, and were going away for the weekend. The complainant decided to have a few friends over after her parents left. Her friend T.H. and T.H.'s boyfriend S.E. were there early, and K.S.'s boyfriend D.W. was to come over later. They started drinking straight shots of a mixture referred to as "liquid cocaine." This is a combination of the alcoholic beverages Jagermeister and Goldschlager.
10When K.S. and T.H. went out for a walk they saw the defendant with a friend, and K.S. invited them back to her place. S.A.A. lived in the complex and K.S. and he had gone to the same school. At some point, the defendant came to K.S.'s residence with J.J. and a male Asian friend. Also present was C.V., a young woman who lived in the complex and was a good friend of S.A.A.'s. K.S.'s boyfriend D.W. arrived about 6 or 7pm.
11As time went on, the complainant was getting drunk. She had taken a pill at 8am for anxiety and depression she suffered from, but had taken no illegal drugs. She fell asleep on a couch in the living room. This couch is in front of a window leading to her front porch. When she awoke, she testified that S.A.A. was trying to have sex with her.
12The defendant was trying to put his penis in her mouth, but was not successful. He tried to have vaginal intercourse with her and she fell asleep. When she woke up her jean shorts and underwear were pulled down. She wasn't sure if the defendant actually had vaginal sex with her or had ejaculated. She was still very intoxicated. She fell asleep again and when she came to it was still dark out. She pulled her panties up and went upstairs to the bedroom T.H. and S.E. were sleeping in and told them what had happened to her.
13K.S. tried to reach her boyfriend without success at his nearby home. She walked to his place, even though she was still drunk. Unable to find him, she walked back home and her boyfriend met her there. He wanted her to call the police, but she did not want her parents to find out about all that had transpired, and she wanted to speak to S.A.A. to find out what exactly he had done to her.
14K.S., D.W., and T.H. went to J.J.'s residence to look for S.A.A., but he was not there. She received verbal abuse from J.J. and other males, and a person named Cam grabbed her neck and started choking her. He let go when she swang her arms, at which time her hand hit a wall. D.W. grabbed K.S. and took her back to her unit and she called the police and spoke to the dispatcher and reported what had happened to her.
15The police arrived and transported her to the Joseph Brant Hospital in Burlington, which housed Nina's Place, a sexual assault reporting centre. She was treated there and samples were taken, and she gave her statement to the police on video. Police photos were taken of her injuries which included scratches on her neck and the injury to her finger when she smacked it against a wall. This was on the 14th day of July.
16K.S.'s sister took her back home and after her parents got there, she told them what had taken place.
17Under cross-examination, the complainant testified that she had no memory of how many drinks she had consumed. She had taken one anti-depressant pill at 8am. She said S.A.A. was a friend of T.H.'s, and that he had never done anything bad to her in the past.
18After she fell asleep on the couch she woke up with the defendant on top of her trying to put his penis in her mouth. It did touch her mouth but never went in. S.A.A. had his pants pulled down and had an erection. She told him to get off but he would not. She was half awake and very intoxicated. The defendant managed to remove her shorts and underwear and had vaginal sex with her. She does not know how long this went on because she fell asleep.
19K.S. agreed that she never yelled for help before she fell asleep again. Her immediate thought was to get him off of her. When she woke up she felt pain in her vagina and was trying to reconstruct what had happened to her, and it started to come back to her. She went upstairs to tell T.H. what S.A.A. had done to her. At no time did she recall seeing the defendant after she and D.W. and T.H. went looking for him.
20It was suggested that K.S. invited the defendant into her residence after he had knocked on her door, and then had him sit on the couch and started kissing him and asking him if he wanted to fuck. This was flatly denied by K.S., who said that she had never done any of these things and that the sexual contact was never consented to by her.
21She conceded that she lied to the police in her statement when she said she only had ten drinks. She said she was trying to minimize the number. She also agreed the intercourse did not last 10 to 15 minutes, but more like 2 to 3 minutes, before she fell asleep. She did not recall telling the police that S.A.A. had put his penis down her mouth and causing her to choke. She was still under the effects of alcohol when she gave her statement. She gave evidence that there was a label on her pill container which advised against mixing the medication with alcohol.
22In re-examination, the complainant said that the effect of mixing her medication with alcohol was like having 2 shots of liquor instead of one.
23T.H. confirmed much of the testimony of the complainant but was upstairs asleep at the time of the alleged assault. At the party the defendant was with a girl named C.V., who lived in the complex. He was amorous with her, but on the porch he told T.H. that he wanted badly to fuck K.S.. T.H. told him she had a boyfriend and not to talk like that to her.
24T.H. testified that people started leaving the party after K.S. passed out on the couch. T.H. put K.S.'s feet on the couch and covered her with a blanket.
25In the upstairs bedroom, K.S. told T.H. that S.A.A. had his penis in her mouth and had intercourse with her without her consent. They went looking for the defendant but never saw him again that night.
26D.W. is the boyfriend of K.S.. He was also dating her at the time of the incident. He had planned to stay over at her place but she passed out about one hour after he got to her place. When he returned, K.S. told him she had been assaulted. He said that she was upset and still under the influence of alcohol. He admitted that he sold marijuana at the time, and had supplied a joint that evening which some had smoked outside the unit.
27C.V. was also at the party. She was building a relationship with S.A.A. and was also a friend of J.J.. After K.S. passed out, C.V. left with the defendant and went to J.J.'s residence. Then she went with S.A.A. to the park and stated that T.H. came up and slapped S.A.A. on the face and said that "my girlfriend said that you raped her." When C.V. and the defendant went back to J.J.'s house, she said that T.H. and her boyfriend, and K.S. and D.W. came there. She maintained that S.A.A. was with her at all times and never left her presence or J.J.'s residence without her knowing about it. She had been contacted by the police and had given a statement to that effect.
28Sergeant Phil Campbell was the last Crown witness. He joined the Halton Police in 2003, and had previous police experience in Northern Ireland. He had taken the video statement from K.S. at Nina's Place. K.S. was tired and emotional and still feeling the effects of alcohol, but he could understand her. He said that his fellow officer Tom Zafiridis told him he had heard somewhere that the defendant had ejaculated in the mouth of K.S., even though he had not spoken to her yet.
29It was conceded by the defence that any statements given by the defendant to the police were voluntarily made.
30An agreed statement of fact was introduced as an exhibit, and it stated as follows:
"K.S. attended Nina's Place on July 14, 2012. She was seen by the Nurse-Examiner at about 5:45am. The Nurse-Examiner collected some samples as part of the Sexual Assault Examination Kit, including an oral swab, an external genitalia swab and a vaginal swab. The samples were sent to the Centre for Forensic Sciences. The results were as follows: External genitalia swab and vaginal swab - Male DNA was detected and a male DNA profile suitable for comparison was generated at 15 autosomal STR loci. The probability that a randomly selected individual unrelated to S.A.A. would coincidentally share the observed DNA profile is estimated to be 1 in 2.6 quadrillion."
Defence Evidence
31S.E. was the former boyfriend of T.H.. He saw the complainant take the powder out of 2 capsules of her anti-depressant medication and consume it. He said he smoked a marijuana joint with some other people at the party, but there were no hard drugs present or consumed.
32S.E. said he was very drunk but K.S. was even drunker than he was. She passed out on the couch, but later reported the sexual assault to T.H. and him. He said she was still very intoxicated and trying to comprehend everything.
33Officer Tom Zafiridis testified that officer Murray Drinkwalter, now retired, told him that the defendant had ejaculated in the mouth of the complainant, but did not know where Drinkwalter got this information from. Officer Drinkwalter was not investigating the case, and was a Staff Sergeant who was coordinating the matter.
34S.A.A. was the last defence witness. He acknowledged that he was at K.S.'s residence and that she was drunk but coherent and knew everything that was going on around her. He did see her consume some powder from some white pills. He was with his friend C.V. and when he left with her, K.S. was just chilling and was not passed out. They went to J.J.'s residence and hung out with others. S.A.A. said he was completely sober at this time.
35At some point the defendant told C.V. and J.J. that he was going to get cigarettes because there were none in the house. He decided to go to K.S.'s unit to get some. Before entering he said he looked through the window but did not see anything. After knocking on the door, K.S. opened the door and let him in. When he asked for cigarettes she had him come in and they sat on the couch. She got close to him and grabbed the back of his head with both hands and they kissed and had sex. Before doing so, he asked her if she was okay and she said she was fine.
36K.S. tried to pull down his pants and he helped her. He also helped her take hers off. She felt his penis with her hands and sucked it for 3 to 5 minutes. Then they had vaginal sex for 10 to 15 minutes, with the defendant on top of the complainant. He ejaculated on her thigh or on the couch. She was coherent and knew what she was doing. She gave him 3 cigarettes.
37S.A.A. said he returned to J.J.'s residence, but did not tell C.V. what had taken place. He and C.V. and some others went to a nearby park and T.H. slapped him on the face and accused him of raping K.S.. He denied doing so. After a few minutes, they went back to J.J.'s unit, and later, K.S., D.W., and T.H. arrived there and alleged that the defendant had raped K.S..
38In cross-examination, he admitted that in his statement of July 17, he told the police that K.S. was really drunk and was wasted. She had trouble walking and was wobbling and almost fell. He said he was nervous when giving his statement.
39When he went to K.S.'s residence to get cigarettes, he said he looked through the window and could see her lying down. When he knocked on the door, he said she got up. She then invited him in and seduced him. He did not want to impregnate her and ejaculated outside her vagina, possibly on her thigh. If his DNA was in her vagina, he said it was not from his semen, but simply from intercourse.
40S.A.A. agreed that he told officer Campbell that he had told C.V. he was going to K.S.'s place to get cigarettes. He denied that he made up the cigarette excuse to disguise his true reason for returning to K.S.'s residence.
41The defendant denied he told T.H. that he wanted to fuck K.S..
The Issues
[42]
(i) Has a breach of section 7 of the Charter been established by the missing audio portion of the videotaped police interview on July 14, 2012, and if so, should a stay of proceedings be ordered under section 24(1) of the Charter?
(ii) Has the Crown proven beyond a reasonable doubt that the defendant had sexual contact with the complainant without her consent?
(iii) Has the Crown proven beyond a reasonable doubt that the defendant was in the dwelling house of the complainant, without lawful excuse, and with intent to commit an indictable offence therein?
Analysis
Missing Evidence Application
43The defence argues that the missing audio portion of the videotaped interview of the complainant is unacceptable negligence and is a breach of section 7 of the Charter, and deprives S.A.A. of the right to make full answer and defence. The resulting prejudice, it is submitted, is more than sufficient to justify a stay of proceedings under section 24(1) of the Charter.
44In R. v. Bero, 151 C.C.C. (3d) 545, Doherty J.A., in para. 30, referred to a summary of the law in this area as was set out by Roscoe J.A. in R. v. F.C.B., 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-548:
(1) The Crown has an obligation to disclose all relevant information in its possession.
(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.
(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights.
(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.
(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor.
(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
45The defence relies on the case of R. v. R.C.S., 2004 NSSC 232, [2004] 192 C.C.C. (3d) 235, a decision of Leblanc J. The facts are similar to the case at bar. The audiotape of the complainant's police interview was of poor quality or inaudible. The investigating officer made notes of all questions and answers except where long answers were given. The problem did not become apparent until some time after the interview.
46There was no videotaped portion of the interview. A recording machine was simply turned on and the interview was supposedly audiotaped. The machine was not tested before or after to ensure it was capable of recording. Credibility was an important issue in that case.
47Leblanc J. found that the conduct of the RCMP amounted to unacceptable negligence because the recording equipment was not tested before the interview, and was not checked afterwards to ensure the interview had been fully recorded. Prejudice was found and a stay of proceedings entered.
48In the present case, officers Campbell and Zafiridis had never had this problem arise before. As he was taking notes, officer Zafiridis could see and hear the complainant being interviewed in another room. The video and audio equipment was functioning properly. There was also full compliance with the Halton Regional Police Service's Directive concerning electronically recorded interviews, a copy of which was introduced as an exhibit.
49Although credibility is in issue, especially when the notes taken by officer Zafiridis were not verbatim, the issues in this case must be considered. Whether there was sexual intercourse is not in issue since the DNA evidence proves this did take place between the complainant and the defendant.
50Whether there was consent or not does not just depend on the evidence of the complainant. If she submitted but was so intoxicated at the time of doing so, and if the defendant did not take all reasonable steps to ensure that the complainant was capable of consenting, the provisions of the Criminal Code apply and there can be a deemed lack of consent, as will be expanded upon later in this judgment.
51The complainant and officer Campbell both concede that she was still under the influence of alcohol when she gave her statement, so this differs from a situation in which a complainant is completely sober and likely to be more accurate in giving a statement.
52The facts in the case at bar are quite different than in R. v. R.C.S. [supra], and I am unable to find unacceptable negligence on the part of the police or the Crown in all the circumstances. At times, unexpected and unforeseen technical problems with recording equipment arise, and this is one instance of it. I cannot find that the failure to play back and listen to the one hour interview, to ensure it had been fully captured, is negligent in this case. There has been no breach of section 7 of the Charter, and even if there were, this is not one of those clearest cases in which a stay of proceedings is justified.
The Charge of Sexual Assault
53The following sections of the Criminal Code are relevant:
Meaning of "consent"
273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
- (a) the agreement is expressed by the words or conduct of a person other than the complainant;
- (b) the complainant is incapable of consenting to the activity; [Emphasis added]
- (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
S.C. 1992, c. 38, s. 1.
Where belief in consent not a defence
273.2 It is not a defence to a 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. [Emphasis added]
S.C. 1992, c. 38, s. 1.
54The onus is on the Crown to prove both charges beyond a reasonable doubt. Since S.A.A. testified, I have considered and applied the principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742.
55I find as a fact, and the evidence is overwhelming, that K.S. was heavily intoxicated when the sexual acts occurred and when she gave her statement to the police. This would affect the accuracy of her recollection on July 14, 2012, and at trial. I also take into consideration her evidence that she lied in her statement in saying that she had only 10 drinks, when she really had more.
56She was 17 years of age and had consumed several shots of pure alcohol. She also may have mixed her anti-depressant medications with the alcohol, which would make her even more intoxicated.
57The only person who testified that she knew what she was doing was the defendant, although this is contrary to what he told the police in his statement when he said she was really drunk and wasted, and had trouble walking and was wobbling and almost fell.
58The evidence of all the Crown witnesses is credible and I accept it beyond a reasonable doubt, with one exception. C.V. said she was with S.A.A. during the time of the alleged offences. This is, of course, not true because even S.A.A. places himself at the residence of the complainant and having sex with her. C.V., a friend of the defendant, committed herself to this position in a statement she gave to the police.
59The evidence of T.H. is accepted by this court as accurate and credible. Particularly important is her testimony that the defendant had a pre-existing passion for K.S., who he said he badly wanted to fuck.
60I find as a fact that when the defendant returned to the residence of the complainant, he looked through her front window and saw her passed out on the couch. He wanted sex with her and, at the very least, had vaginal intercourse with her. The DNA evidence confirms this.
61I also find as a fact that the defendant took advantage of her incapacity. She could not consent because she was unable to, and S.A.A. was fully aware of this.
62There are inconsistencies between what the defendant told the police and what he said at trial, and I do not accept his evidence. His evidence does not raise a reasonable doubt in this case and on the whole of the evidence the Crown has proven his guilt on the sexual assault charge beyond a reasonable doubt.
The Charge of Unlawful Entry
63Section 349 of the Criminal Code reads as follows:
Being unlawfully in dwelling-house
349. (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
Presumption
(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.
64Section 350 of the Criminal Code is also set out herein:
Entrance
350. For the purposes of sections 348 and 349,
- (a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
- (b) a person shall be deemed to have broken and entered if
- (i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
- (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening.
R.S.C. 1970, c. C-34, s. 308.
65I find as a fact that the complainant did not invite or let the defendant into her home. She was too drunk to do so. The defendant let himself in through the unlocked door with intent to have sex with her. On the facts and on the law, I find that the Crown has also proven this offence beyond a reasonable doubt.
Conclusion
66S.A.A. is found guilty of both charges.
Released: May 27, 2014
Signed: "Justice Alan D. Cooper"