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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
James Alexander Martyniuk
Before: Justice William B. Horkins
Heard on: August 29, 30 and 31, 2018
Reasons for Judgment released on: September 27, 2018
Counsel:
- Mr. Stephen Duffy — counsel for the Crown
- Ms. Heather Spence — counsel for the accused James Alexander Martyniuk
Decision
OVERVIEW
1The evidence in this case is not complicated. A group of co-workers gathered after work at the complainant's home to celebrate a birthday. A fair amount of alcohol was consumed by all. The party broke up at about 10 p.m. Everyone left except for the accused. The Crown alleges that sometime later in the night the complainant was sexually assaulted by the accused. The complainant has an extremely limited memory of the events surrounding the alleged assault. The accused vehemently denies the allegations.
2Those present at the initial after work gathering were all in their late 20s, and part of a team working at a TD bank office in midtown Toronto. In addition to the accused and complainant those present were C.S., A.W. and B.T. (ph). The most reliable witness to the events leading up to the point of the party breaking up is C.S., whose birthday was being celebrated.
3The group chatted, drank, ate pizza, and some group photos were taken. During the evening, C.S. gained the impression that there was a certain "vibe" of affection brewing between the accused and the complainant. He based this on subtle signs; they were in close contact talking with each other much of the time; they were cuddled together on the couch for the group photos; and the accused was the only one to take up the complainant's invitation to crash at her place for the night, when the party broke up. C.S.'s impression was reinforced when he had to quickly return for his forgotten phone and found the accused and complainant again together on the couch. His impression of the "vibe" between them was strong enough that he mentioned it to his girlfriend later that night, saying that he thought that those two might be "hooking up". I would not elevate C.S.'s impression to the level of an expert opinion, but it does tend to confirm the credibility of the subjective impression that the accused also had that there might be some prospect of sexual activity with the complainant later that night.
4I must be quick to add here that the complainant strongly denies that there was any "vibe" or any prospect at all of sex with the accused. She explained the apparent cuddle on the couch photos as literally her "grinning and bearing it"; that in fact, the accused was uncomfortably close and touching her when the pictures were taken. I accept this as a credible explanation to balance against the equally credible impression of intimacy that it conveyed to C.S., or it might convey to any detached objective observer.
5From all accounts I confess to being mildly surprised that both the accused and complainant both say that they were as highly intoxicated in the late stages of the evening. Although everyone was drinking socially, the friends called as witnesses noted no signs of gross impairment exhibited by anyone present.
6The complainant says that she has a virtual blackout of her memory of most of the night after her other friends left. The accused says that he has a clear memory of the events, but was so drunk that he was eventually unable to stay awake or to achieve an erection when the occasion for sex did present itself. The consumption of some heavy cocktails, such as the celebratory "Irish Car Bombs" and the shared bottle of Fireball Cinnamon Whiskey is, I suppose, the most likely explanation.
GENERAL PRINCIPLES
7Many criminal cases, such as this case, ultimately present the Court with two competing versions of the events. However, fundamental principles do not allow an assessment of the evidence in a criminal case to become simply an "either/or" choice between two competing versions of the events. Instead, the framework of analysis in such cases must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt.
8The Supreme Court has provided trial courts with the W. (D.) framework of analysis for cases such as this.
- Is the evidence of the accused believed?
- If not, does the accused's evidence leave the trier of fact in a state of reasonable doubt?
- Even if the trier of fact is not left in a state of reasonable doubt by the accused's evidence, considering the whole of the evidence has the Crown proven the offence beyond a reasonable doubt?
9Although it is certainly not an error to assess the credibility of the accused in relation to, or in comparison with, the evidence of the complainant, the Court must be very cautious in doing so. The typical error made under the W. (D.) framework is committed when the Court treats the matter as concluded once this comparative assessment of credibility has been completed. To do so misses the third and critical step in the W. (D.) framework of analysis.
10The central concern of the W. (D.) framework of analysis is to highlight that mere disbelief of the accused's evidence does not satisfy the burden of proof which lies heavily on the Crown in a criminal prosecution. It is a fatal error to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt. The Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt.
11As can be readily appreciated by these general instructions, the prosecution faces a very formidable task in the prosecution of cases that hinge on this framework of analysis.
APPLICATION OF THESE PRINCIPLES
12The complainant has very little memory of what transpired after her other friends left. She has a vague recall of being at the front door saying goodbye to her guests. She may have offered up "an open door" invitation for anyone who cared to stay the night. The accused indicated he was too intoxicated to travel home and that he would stay. She concedes this is a vague memory. This is regrettably her last memory until she recalls being in her own bed with the accused some time later in the night.
13How or why she ended up in her bed with the accused she has no idea. She recalls being prone partially on top of the accused, with him kissing her and masturbating himself at the same time. She states that prior to that moment she was unconscious. She pulled away from the accused and confronted him "sternly" saying, "What the fuck are you doing? You have a girlfriend". He responded that he and his girlfriend had an open relationship, and so it was alright what they were doing. She then repeated, "What the fuck are you doing?" and he, in turn, repeated that he and his girlfriend had an open relationship. She says that he then continued to kiss her. She has no memory from that point in time to a point in time that she assumes was shortly thereafter, when she remembers standing at her front door for him to leave and him saying that it was 1.30 a.m., the subway was no longer running and that he would have to stay. The complainant was hesitant but agreed to allow him to stay, at which point he went right back into her room to sleep.
14The complainant was incensed that he would return to her room, into her bed. She indicated that she was paralyzed in fear, afraid and confused. Her memory is then a further blank until she recalls waking up in the morning, in her sister's bedroom. She went out into the living room area and found her clothing in a pile by the couch, near the front door. Shortly after this, she woke up the accused. She pretended everything was fine because she just wanted him out of her home. He left to make the half-hour walk to work. She made up an excuse for not going into work, and basically stayed in bed all day, being so distraught from the events.
15These events took place on a Thursday night to Friday morning. On the Saturday, she spent the day with a friend but does not recall what they did. She reported that on Saturday she experienced excruciating pain in her vaginal area. She said it felt as if a broom handle had been thrust inside her as hard as could be. The pain lasted a couple of days.
16On the basis of all that she is able to recall, she has concluded that the accused sexually assaulted her both by kissing her while he was masturbating, while she was unconscious and incapable of consenting, and that he had sexual intercourse with her at some point, again, when she was incapable of consenting or, in fact, did not consent.
17The accused vehemently denies the allegations. He does not dispute the general nature of the events leading up to the departure of the other friends from the complainant's home. He felt that the complainant was flirting with him to some degree, and based this conclusion on the same subtle factors referenced by C.S.. In addition, he related how at one point she was showing them all pictures of her weight loss "journey". He made the comment that she looked hot now and she replied, "not so bad yourself". He thought this was "flirty".
18The pictures that were taken that evening are in evidence. The accused and the complainant are seen on the couch together. The visual is consistent with her snuggling into him with a large happy smile on her face. I quickly caution myself that the visual is equally consistent with her evidence that she was very disturbed by the accused having his hand around her, touching her, and that she was putting on a brave face.
19The accused's version of the events following the departure of the other friends is significantly different from the complainant's partial recollection. He says that they were on the couch, as C.S. says, then they were standing in the living room face-to-face, kissing. He does not recall any particular lead up to the kissing, but he does recall her pulling back. And he says it was at that point, not later on, that she sternly rebuked him with the comment about having a girlfriend, and her not wanting to be the cause of any breakup, to which he advised her that he and his girlfriend had an open relationship and it was all right. At that point, he kissed her again. She lingered on that kiss but then again pulled back and walked away, accusing him of being a "cheater". The complainant's reaction made it perfectly clear to him that there would be no further advancement towards any sexual activity with her that evening.
20He acknowledged that the situation felt awkward. His evidence is that the complainant then offered him a drink, which he accepted, which led to a lengthy period of time that they drank and talked and talked until realizing that it was past 1.30 and the subway would have stopped running. He asked if he could stay until morning, and she agreed. He went into the bathroom, stumbled and fell into the tub. The fall and the alcohol had him tired and disoriented. He came out or the bathroom, saw a bed and simply crashed. He was in fact now in the complainant's bed.
21The accused's next recollection was of suddenly waking up and seeing the complainant's smiling face above him, descending towards him. She straddled him, leaned in and kissed him. In response to this, he struggled to get his penis out of his pants. He was still fully clothed in his work clothes: shirt, tie and dress pants. He was trying to get himself erect with the intention of sex, but due his intoxication was unable to do so. He put his penis back in his pants, zipped up and fell asleep. His next recollection is of the complainant kicking him in the feet, to wake him up and send him on his way in the morning.
22There were exchanges of text messages after-the-fact. The initial ones are relatively inconsequential but on the Wednesday, following these events, the complainant sent a text to the accused making accusations that he had taken advantage of her on the evening in question. Just as reading into the photographs, reading into the meaning behind the plain words of the text must be done with great caution.
23In the text of February 8, Exhibit 3, the complainant indicates that over the past three days she felt absolutely mortified. She says there that the last thing she remembered was going out to the store with C.S. and coming back. The next thing she remembers was around 1:30 a.m. She writes: "I do not know if I passed out. I do not know if you fucked me. I don't know where your hands were. The next thing I remember is kissing you??" And seeing you, I believe jerking off and I was saying you have a GF WTF and you saying I'm in an open relationship"...etc.
24In response to this message, he asked if they could discuss it over the phone. The complainant refused. He responded that he didn't do anything with "ill intent and that nothing else happened".
25The formal complaint to the police was made about three months after the fact. There is no suggestion that anything negative should be drawn from the delayed complaint in this case, and I drawn no adverse inference. There may well be all sorts of good and valid reasons why the complainant hesitated to take this matter to the authorities. It is also clear from the earlier text message that she had a complaint to make within a short time of the events.
26The only significance in the delay is it was only after that passage of time that the witnesses were asked to recall and relate their memory of the events.
THE LAW
27A criminal "assault" is an intentional application of force to the person of another without that person's consent. A "sexual assault" is an assault committed in sexual circumstances such that the sexual integrity of the victim is violated. The test to determine if an assault is "sexual" is an objective one. This test asks whether the sexual nature of the contact would be apparent to a reasonable person when viewed in light of all of the circumstances. The actual intent of the accused is only one factor amongst many that may determine if the conduct involved is "sexual".
28"Sexual assault" as defined in our Criminal Code covers a very broad spectrum of offensive activity; everything from an uninvited sexual touching to a brutal rape falls under the one title of "sexual assault". The events as described by each of the complainants, taken at face value, fall within this broad definition. Each allegation of violence occurred in an intimate situation.
THE ISSUE
29The pivotal issue in this case is simply the strength and reliability of the complainant's evidence measured against the denial of the accused, and the standard of proof beyond a reasonable doubt, the burden of which lies squarely on the prosecution. The resolution of this issue is not simply a credibility contest.
THE FRAMEWORK OF ANALYSIS
30The fundamental framework of analysis in a criminal trial is often left significantly abbreviated in judge alone trials. In this case, however, it is important to state this framework clearly. It plays the central role in the determination of this matter.
The Presumption of Innocence
31The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.
Proof Beyond Reasonable Doubt
32Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of "proof beyond reasonable doubt". This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.
33The criminal law recognizes a spectrum of degrees of proof. Many cases tried in this court are firmly based on reasonable and probable grounds. That is why the charges were laid in the first place. Prosecutions are generally screened by the Crown attorney and not brought forward unless they have met the Crown's pre-trial screening standard of there being a reasonable prospect of conviction. In civil litigation, the plaintiff need only establish its case on a balance of probabilities. In a criminal case, the Crown's case must go much farther and reach that much higher level of proof beyond a reasonable doubt to secure a conviction. As a result, convictions are often difficult to secure even when there exists before the Court a concerning body of evidence. In many instances, especially in cases of alleged sexual misconduct, the criminal law has proven to be a very poor mechanism for discovering the actual truth of the matter. Why is this? It is unapologetically because the criminal trial process is purposely designed to only convict in a case where the guilt of the accused is clearly and unequivocally established by proof beyond a reasonable doubt.
34The required burden of proof on the prosecution is exactly the same with respect to every single charge in the Criminal Code, from shoplifting to murder, and it is the same for the charges faced by this accused.
35The idiom proof "beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
I instruct myself accordingly.
ANALYSIS
36Let me first deal with the Crown's submission that the evidence establishes beyond a reasonable doubt that the accused had vaginal intercourse with the complainant, when she was either incapable of consenting or in fact did not consent. The complainant has no direct memory or knowledge of this allegation. The evidence is entirely circumstantial. The complainant indicates that she concludes that the accused had intercourse with her because on the Saturday following the events, she experienced excruciating pain in her vagina. She described it as being as if she had been violated with the broom handle. This is absolutely the only evidence in support of the proposition that the accused raped the complainant during the night. The complainant assumes that this happened while she was unconscious or that she has a memory blackout of the event.
37The force of her evidence on this is surrounded with some obvious question marks. First of all, she obviously has no memory of having had intercourse with the accused. Secondly, in her interview with the police, months after the events she made what could be characterized as a short or passing reference to having felt pain in her "pubic bone" on Saturday. The evidence at trial was much amplified beyond the complaint to the police.
38I caution myself that it is not unknown or unusual for honest witnesses to amplify certain aspects of their evidence at trial in an effort to insure that they are believed. This does not necessarily mean that they are being dishonest. Another aspect that I consider is that a victim of a sexual assault will often be somewhat reserved in the initial reporting of the events, because the subject matter is very private and intrusive. I take that into account. I also instruct myself that it is very dangerous to measure the behavior of a sexual assault complainant against the measuring stick of what others may hold as common expectations. We know from experience that traumatized victims often retrieve memories, especially after a passage of time, in what can sometimes seem to be an unusual fashion. Being careful of all of those considerations does not mean ignoring common sense or obvious frailties in the evidence.
39There is no medical evidence or opinion relating this pain to the proposed inference that the complainant was raped. I have nothing to explain the apparent concern that the pain only appeared a day or more after the supposed events.
40There is no means of independent corroboration of the pain, or any clue as to its origins apart from the evidence of the complainant. All of this in no way means that it did not happen, but what it does mean is that the evidence is completely incapable of establishing beyond a reasonable doubt that it did happen. And without hesitation, I find that the Crown's case fails to establish those alleged facts anywhere close to the necessary degree of proof beyond a reasonable doubt. This finding of fact narrows the case against the accused to a consideration of the kissing while masturbating transaction that both parties do have a recollection of, albeit their own distinct contrary recollections.
41The complainant has very little memory of the entire evening. However she does relate a clear memory of gaining consciousness, and finding herself prone partially on top of the accused. He was kissing her while he masturbated himself. It is perfectly clear that she was not consenting to such activity and based on her evidence, incapable of consenting at the outset of the activity. This conduct would clearly be a sexual assault. An unconscious person is incapable of consenting; and kissing someone while simultaneously masturbating without that persons consent would be a sexual assault.
42The issue for determination is whether those facts have been established beyond a reasonable doubt. The complainant gave her evidence in this regard in a relatively strong and articulate fashion. She was very frank about what she did and did not remember. Apart from the conflicting evidence of the accused, there is little or no reason not to believe her.
43The accused on his own evidence was quite open to things leading to sexual activity, and it is entirely possible that he would have taken advantage of her inebriation to do so. However, the accused strongly denies this version of the events; and to the contrary, states a clear recollection of the complainant instigating the kissing in her bedroom. She woke him up as he lay in her bed. She straddled him. He understandably took this as an invitation to sexual activity to which he was more than inclined to pursue except for his physical inability to do so.
CONCLUSIONS
44To reiterate the essential message from W. (D.): a criminal trial is not a contest between two versions of events. The Court must never allow a criminal trial to devolve into a question of whose story is more sympathetic, or just seems better. A criminal trial is not even necessarily so much a search for the truth. As startling as that proposition may seem, a criminal trial is essentially a dispassionate inquiry into whether the evidence presented is of sufficient weight and clarity to establish the Crown's allegations to a point of proof beyond a reasonable doubt. The possibility of guilt is not sufficient. Even a probability of guilt is not sufficient. Only proof of guilt beyond a reasonable doubt is a sufficient foundation for a criminal conviction.
45The complainant's lack of ability to recall the entirety of the events is in no way her fault. I draw no adverse inference from her apparent lack of memory. However, the reality is that as a result there is little evidence capable of undermining the evidence of the accused.
46Taken in the entire context of the evidence, the accused's version of the events is plausible and if true, does not support an allegation of sexual assault. Apart from the contrary account given by the complainant, I am unable to articulate any sufficient basis for rejecting the accused's account of what happened.
47The evidence in this case fails to prove to any satisfactory degree either version of the events. Put simply, either version could be true. There is clearly, therefore, a reasonable prospect that this accused is innocent.
48The accused comes before the Court presumed innocent and that presumption remains until, and unless, the evidence overcomes that presumption and establishes the allegations, the point of proof beyond a reasonable doubt. The evidence here fails to do that, and the charges are dismissed.
Released: September 27, 2018
Signed: "Justice W.B. Horkins"