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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
Daniel Bisaillon
Before: Justice Richard Blouin
Heard on: August 18 and 19, 2014
Oral Judgment given on: October 3, 2014
Written Reasons for Judgment released on: October 30, 2014
Counsel:
Mr. Scott Patterson — counsel for the Crown
Mr. Paul Tomlinson — Agent for the defendant Daniel Bisaillon
BLOUIN J.:
1Daniel Bisaillon was charged with sexual assault on J.H. on July 19, 2013. The trial lasted two days wherein I heard from eight Crown witnesses. The defendant testified. The matter was remanded for six weeks for submissions. On October 3, 2014, after hearing submissions, I orally rendered a finding of not guilty given the Crown, in my view, had not proved the absence of consent beyond a reasonable doubt. These are my more fulsome written reasons that I promised the parties.
2Two police officers received a radio call to attend D[…] Road at 3:42 a.m. When they arrived six minutes later, they saw a male without pants lying on top of a female, also naked from the waist down, in a grassy area outside of the apartment building.
3The male (Mr. Bisaillon) assisted the female (Ms. J.H.) to her feet. She was unable to maintain her balance without assistance. She was conscious but intoxicated and when asked if she wanted to be there, her answer was unintelligible. When asked if she knew the male she was with, she said that he is her boyfriend, and that he is taking care of her. Her knees were red and there was bruising to her elbows. Her lips were bloodied and swollen and there was a cut on her chin.
4Ms. J.H. also indicated that the defendant was her uncle's nephew. Police observed the defendant whispering to the complainant throughout their questioning, although the content of that hushed communication was not heard.
5Quite properly, the police investigated the residents of apartment […] that evening, where the defendant also lived, and the complainant had visited earlier. After speaking with Tanya Bury and Jason Van der Hayden, and the defendant, they arrested the defendant at 4:49 a.m., one hour after their arrival.
6Ms. J.H. testified that she had accepted an invitation from the defendant to have a drink in apartment […]. She lived two floors above in apartment […]. After 10:30 p.m. she consumed two tall-boy cans of beer and a shot of tequila. After that she has no memory of events until she woke up in the hospital the next afternoon. She has no idea how her injuries occurred. She testified that she did not want to have a sexual relationship with the defendant and that it was not "something that she would consent to doing."
7Mr. Bisaillon testified that he had met the complainant a couple of times before inviting her for a drink. Ms. J.H. drank two tall-boy beers before Mr. Van der Hayden brought out a bottle of tequila. She had a shot. After consuming some himself, the defendant went outside for a cigarette. When he came back in, Jason and J.H. were not in the living room, but in Jason's bedroom with the door closed. They had been "flirting" earlier. Somewhere around 12:30 a.m., Jason's girlfriend, Tanya Bury, arrived home. She found her boyfriend and Ms. J.H. in bed. Enraged, she grabbed Ms. J.H. by the hair and dragged her to the patio, punching her six or seven times, screaming and calling her "whore." Ms. J.H. was dropped outside against the patio threshold step.
8After getting Ms. J.H. some boxer shorts and helping her put them on, she started to come on to him. She sat on his lap, kissed his neck, and told him that she wanted to have sex with him. She said, "I didn't come here for Jay in the first place. I came here to see you." Ms. Bury was yelling outside for the defendant to get the complainant away from the property. The complainant took his hand and pulled him to a grassy area.
9On the grass, the two were kissing, grinding, and the complainant got on top of the defendant. Ms. Bury came out yelling "get that whore out of here." Ms. J.H. said, "Leave us alone."
10When the police arrived, Mr. Bisaillon agrees that he was whispering to the complainant, but it involved asking why she said that he was her boyfriend, and why she was giving a false name. Mr. Bisaillon agrees that the complainant was intoxicated but maintained that she was fully aware of what was going on, and consented. His penis never entered the complainant.
Findings
11Ms. Bury testified that she had no memory of confronting the complainant in her boyfriend's bed; she did not punch her many times in the face. She did not yell at J.H. and J.H. did not yell at her. I did not believe Mr. Bury when she denied the verbal and physical confrontation made on Ms. J.H.. She had motive to lie to protect herself from a charge of Assault. Her claim that she did not recollect a confrontation with a woman in bed with her boyfriend is obviously ludicrous. One would remember, one way or the other. She had not been drinking. In any event, her denial of a verbal or physical confrontation was directly rebutted by the evidence of a neighbour, Jason Ross, who heard the female tenant screaming and yelling about somebody "screwing in her bed," and calling someone a "bitch" and a "whore." Mr. Ross called police when he saw what he considered to be consensual sex occurring on the ground below his third floor balcony. Mr. Ross was a very credible, unbiased witness.
12The Crown led a significant body of evidence which suggested the complainant was extremely intoxicated. Even the defendant agrees that Ms. J.H. was "pretty drunk." So much so that he cut her off more alcohol at a point before any physical contact. He agreed he had to assist her to put boxer shorts on. He had to help her up to sit her on a patio chair after she hit her head on a concrete porch step. Mr. Bisaillon even agreed with the Crown's suggestion that he probably would not have pursued any sexual activity with the complainant until she was sober, if he himself was sober. He asked her to consider waiting till she was sober to continue with sexual activity.
13In addition, all three police officers who attended the scene that morning testified to her disoriented state, her inability to stand unaided, her slurred speech and incoherence, her extreme intoxication. Ms. Bury also testified that the complainant was "really drunk." A toxicologist, Inger Bugyra, testified that the complainant's BAC would have been between 201 and 278 milligrams at 3:00 a.m.
The Law
14The Crown provided a helpful case book. Two cases were of assistance regarding the live issues in this case:
R. v. Crangle, 2010 ONCA 451
Section 265(2) makes the section applicable to all forms of assault, including sexual assault. While nothing in s. 265 provides a definition of consent, s. 265(3), which is applicable to all forms of assault, sets out circumstances in which the defence of consent is not available:
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Section 273.1 speaks specifically to sexual assault. Section 273.1(1) sets out a definition of "consent" in the context of this form of assault, and s. 273.1(2) provides a non-exclusive list of circumstances in which the defence of consent to sexual assault cannot be raised:
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 questions.
(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;
(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.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
To establish the actus reus of sexual assault, the Crown must prove three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para. 25.
In other words, the Crown had to establish that the complainant did not voluntarily agree to the sexual activity that took place that night. In Ewanchuk, the Supreme Court of Canada made clear that the absence of consent must be assessed only on the basis of the complainant's subjective state of mind towards the sexual activity in question and that assessment must be as of the time the activity occurred.
R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698
In the context of sexual assault, the capacity to consent is straightforward and is a factual issue to be decided by the trier of fact. A person has the requisite capacity where she has the ability to understand and agree (or not agree) to engage in the sexual activity in question. This is not a cognitively complex task.
The question is whether or not the complainant was able to make a voluntary and informed decision, not whether she later regretted her decision or whether she would not have made the same decision if she had been sober. Thus, an obvious example of incapacity would be the complainant who was unconscious or in a coma at the relevant time. As I have already explained, memory loss, without more, is not sufficient proof of incapacity. Similarly, while intoxication, self-induced or otherwise, might rob a complainant of capacity, this is only a possible, not a necessary, result. In this regard, I would adopt the comments of Justice Duncan in R. v. Cedeno (2005), 2005 ONCJ 91 (CanLII), 195 C.C.C. (3d) 468 at 475 (O.C.J.):
Cases where the complainant is said to be incapable due to consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity [citations omitted]. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control [citations omitted]. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times.
Findings
15Despite the significant evidence that the complainant was extremely drunk and could not consent, cogent and compelling evidence suggests otherwise:
Ms. J.H. was able to tell P.C. Harrison in the ambulance, and quickly remember, that her daughter, H., was with her biological father.
When P.C. Santos-Vicentino asked the complainant upon his arrival on scene if she knows the male. She advised that he is her boyfriend, and that he is taking care of her.
Ms. Bury testified that the defendant was asking for clothes, and assisting in getting the complainant dressed after Ms. Bury ejected her from the apartment naked from the waist down.
Ms. Bury described the sex on the grass as consensual in her view. Ms. J.H. was making sounds like she enjoyed it.
16Ms. Bury testified:
that it seemed like she (Ms. J.H.) wanted to hang out with the defendant;
that she was "fully down with him" and "all over him";
that she felt the complainant was "seducing" the defendant when she saw them on the couch together in the living room;
that she was kissing him;
that both the complainant and defendant told Ms. Bury to leave them alone when they were having sex.
17Jason Ross testified:
that when he looked down from the balcony the naked woman was on top of the male and that she was "leading him" in the sexual activity;
that from what he saw, he would call it consensual.
18Accordingly, I was left with a reasonable doubt regarding the absence of consent despite the complainant's evidence that she would not have consented. Although she had no memory of the relevant periods of time, both the defendant's evidence, and plenty of independent evidence, suggests that she did consent.
Released: October 30, 2014
Signed: "Justice Blouin"