Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Edgar Alan Pestano
Judicial Officer and Counsel
Before: Justice G. P. Renwick
Heard on: 18, 19 November and 17 December 2019
Reasons for Judgment released on: 19 December 2019
Counsel:
- E. Norman, counsel for the Crown
- R. Covre, counsel for the defendant Edgar Alan Pestano
Introduction
1The Defendant is charged in a one-count Information that he did commit a sexual assault upon Ms. X.F.[1]
2This was a brief trial. The main issue is whether it has been proven beyond a reasonable doubt that the Defendant committed the alleged sexual assault. The Defendant raised the defence of consent, or, alternatively, an honest but mistaken belief in consent.
General Legal Principles[2]
3The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution's burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt about whether X.F. was sexually assaulted by the Defendant, he will be acquitted of the charge.
4A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities.[3] If after considering all of the admissible evidence I am sure that the defendant committed the alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.
5This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.
6A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
7The role of confirmatory and contradictory evidence can also be important when assessing the evidence of witnesses. However, confirmatory evidence in particular need not directly implicate the defendant or confirm the prosecution's theory in every respect. Rather, the confirmatory evidence should be capable of supporting the relevant aspects of the witness' account.
8Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, "Doubt about Doubt: Coping with W.(D.) And Credibility Assessment" found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into 5 propositions:
(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;
(ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the defendant;
(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;
(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.
9In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific pieces of the evidence. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.
10I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digital recordings of the proceedings, and to review the exhibits. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings.
The Evidence and Findings of Fact
The Testimony of C.S. – The Complainant's Mother
11The first prosecution witness was C.S., who is X.F.'s foster mother. Her evidence was brief. Essentially, she testified that her daughter texted her one morning to go to the doctor and when she spoke with her Ms. S. saw that X.F. was "very physically upset…crying, shaking, talking in anger…" She was aware that X.F. had been out with "friends" the night before.
12Given that Ms. S. had never in the six years she had raised X.F. observed this behaviour from her daughter, she asked X.F. whether she had been "raped." She testified that when her suspicion had been confirmed, she arranged to bring X.F. to Chantel's Place,[4] and with X.F.'s permission, the police were called.
13There was no real challenge to any of this evidence during the four-minute cross-examination of this witness. If anything, the cross-examination revealed that Ms. S. did not have many details of X.F.'s social life, and she believed X.F. to be "very shy."
14My own assessment of this evidence is that it was credible and reliable. Ms. S.'s evidence was plausible, consistent, largely unchallenged, and it stood uncontradicted by any other evidence. I accept as accurate what Ms. S. said about X.F.'s demeanor the morning after the alleged assault, that she first asked whether X.F. had been "raped," and her discussion with X.F. became the genesis of the criminal investigation.
The Testimony of X.F. – The Complainant
15Overall, X.F. was an extremely credible witness. For the most part, I found her evidence to be unadorned, plausible, and credible. She was not a perfect witness, but perfection while testifying is neither required nor realistic. In the end, I accept X.F.'s evidence as credible and reliable, subject to one concern noted below.
16X.F. testified about how she knew the Defendant and how it was that she ended up spending time with him on the night in question. Much of her testimony was unchallenged during cross-examination or during the Defendant's evidence. If anything, cross-examination reinforced a nascent impression during her evidence that she was testifying accurately and truthfully.
17The complainant was a balanced witness. It did not appear that she was gratuitously trying to paint the Defendant in a negative light. Several examples of this can be found in her testimony.
18During examination-in-chief, X.F. described their interaction in the bathroom moments before the alleged sexual assault. At one point she said that the Defendant's hands were around her waist. X.F. was asked how she felt about that, to which she replied: "it was okay."
19In cross-examination, X.F. confirmed that it was the Defendant's roommate, and not the Defendant, who produced a marihuana cigarette for them to share.
20Further in cross-examination, X.F. agreed with the suggestion that when the Defendant kissed her after blowing smoke into her mouth, and contrary to the Defendant's statement that it was a bad kiss, she agreed that "it was ok."
21Also, when asked in cross-examination if the Defendant showed concern for her while she was crying in the washroom, X.F. testified: "he was probably wondering what was wrong."
22She also admitted that she had her legs wrapped around the Defendant when he lifted her up from the bathroom sink and carried her over to the bed.
23Lastly, on the issue of whether or not X.F. was attracted to the Defendant, X.F. denied that she found him attractive. However, she stated, "He had better arms than the one I'm currently seeing."
24During cross-examination, the complainant was found to be incorrect with respect to whether there was a cushion on the window seat in the second bedroom. When shown a photograph, it became obvious that she was mistaken about this very minor detail. Minor inconsistencies in her evidence did not cause me any concern about her overall reliability as a witness.
25In fact, the complainant was surprisingly accurate about the layout of the Defendant's home and the content of the rooms, given that she had only been there once.
26At one point during cross-examination, counsel showed photographs of a second living room on the main floor to contradict what the witness had said about mirrors on the living room wall. The witness could not explain the absence of the mirrors in the photographs shown. In re-examination, the photographs which became exhibit 4 proved that the living room just above the front door stairs, before entering the kitchen, had a very large mirrored wall and a wooden table, as the witness had earlier described, whereas the walls of the living room past the kitchen (with couches similar to those in the other living room), were bare.
27The one concern the court had with the testimony of X.F. was her apparent immaturity. At one point in cross-examination, counsel asked:[5]
Q: He asked to have sex with you that night.
The witness responded:
A: He wishes. Just sayin.'
And further on, the cross-examination continued:
Q: He made it clear that he wanted to have sex with you.
A: When, please tell me. He said that, in person? When?[6] That's gross! I did not want to sleep with him at all. I'm not attracted to him at all.
28I have considered the overall internal consistency of this testimony, the witness' attempts to answer all questions accurately, and the content of the complainant's testimony, along with her apparent sincerity, the emotional content of her evidence, and her overall demeanor in assessing the impact of the evidence mentioned above.
29It is apparent to me that the complainant is a young adult, of average intelligence, but perhaps limited sophistication. I did not form the impression that this witness was attempting to be flippant or untruthful, rather, X.F. appears to be transparent and unbeguiling. She appears to be someone who does not put on airs or attempt to act appropriately.
30None of these observations cause me to doubt X.F.'s veracity or reliability in the slightest. To the contrary, as I might find in a manner similar to the assessment of a child-witness, her lack of tact and maturity imbue a patina of reliability to her testimony.
The Testimony of the Defendant
31On the whole, the Defendant's testimony was minimally credible (in parts that were consistent with other evidence), unpersuasive, implausible, and designed to exaggerate his good qualities. There was a performance quality to the Defendant's testimony. At all times, the Defendant sought to describe himself as a gentleman, with concerns for those around him. Given my concerns with the accuracy of the Defendant's account, I do not find that he is a reliable historian respecting what took place with X.F.
32The Defendant testified that he was 28 years old when the alleged assault took place. He is gainfully employed at two occupations and he has no criminal record. The Defendant is affable, talkative, fit, and attractive.
33One of the main problems I have with the Defendant's testimony is that the Defendant made assumptions about the level of physical contact X.F. wanted with him, and he mistook her silence or acquiescence as consent.
34For example, when walking in the Walmart, the Defendant says that he put his arm around the complainant's waist. She testified that he never asked to touch her waist and it made her uncomfortable. The Defendant never testified that he had asked permission to touch the complainant's waist as they walked around the store. He described this incident during examination-in-chief in the following way:
Q: Now, are you with her the whole time or do you sort of go your separate ways, do different things?
A: No, we stayed close, amongst each other. Before I, we walked together, my arm around her waist.
Q: So, you put your arm around her waist?
A: Correct.
Q: Were you guys talking?
A: Yes, we were.
Q: And, do you recall, what you guys were talking about?
A: So, we were just talking about each other, how everything was. How friends were. Our lives, and at the same time talking about each other's weight.
Q: Okay.
A: How our appearances looked from the last time we saw each other.
Q: Now you said you had your arm around her waist.
A: Correct.
Q: Okay. Did she say anything about that to you?
A: No, she was feeling quite comfortable and fine.
Q: And was it your left arm, your right arm, do you remember?
A: My right arm.
Q: Your right arm.
A: Mmhmm.
[Defence counsel took a moment before continuing]
Q: Do you recall, when Ms. [F.] gave her evidence yesterday, she stated that at one point, while you were walking through the Walmart, that you touched her butt. I think her exact words were, you touched her "ass."
A: Yes.
Q: Okay. Do you recall her giving that evidence, yesterday?
A: Yes.
Q: Can you sort of describe, first of all, did you in fact touch her butt?
A: A light tap, yes.
Q: And how did you do that.
A: So, when I had my arm around her waist, I was telling her how she's grown since the last time I'd seen her and she looks very, very pleasant and nice.
Q: And you?
A: Gave her a light tap on her butt, yes.
Q: And did she react in any way to this?
A: No sir. She was still underneath my arm.
Q: Did she at any point try to move away from you or try to move your arm away from her?
A: No nudging, no restrictions. I wasn't even holding her, it was just a light grace.
35Similarly, when he described blowing marihuana smoke into the complainant's mouth, the Defendant testified in his examination-in-chief:
Q: At one point, she does say, that you came, that you moved positions, you came around her, you approached her from one of her sides, I can't recall if it was left or right side and then, her words were, "he blew smoke" into her mouth without her permission. And that, this in fact startled her.
A: No, she wasn't startled. This is in fact when I had opened up the window. I made sure it was cracked open, I took a puff of it, I told her to tilt her head back. She knew what was happening, she seemed fine with it, I blew it gently into her. And she did absorb it and take a puff.
Q: So, let's just sort of, we're not gonna spend too much time on this. You took a, you inhaled some marihuana smoke?
A: Correct.
Q: How did you approach her?
A: As I approached her, gently like I said, I opened up the door, I opened up the window, I approached her to the left side, because that side has the window, I approach her gently, [inhales deeply] take a sip.
Q: A toke?
A: Ya, a toke.
Q: Okay.
A: And I ask her, I ask her to tilt her head back. She tilts her head back, I blow gently into her mouth.
Q: Okay. Do you recall whether she inhaled any of it?
A: Ya, she did.
Q: Did she say anything when you did this?
A: No.
Q: Did she appear to enjoy it?
A: Yes.
Q: Did she say not to do that again?
A: No.
Q: Did she somehow react in a startled fashion when you did this?
A: No.
Q: At some point, you do this a second time?
A: Yes.
Q: But this time, your lips do make contact with her. And, she describes it was more of a kiss, and that she did not ask for this kiss, and that it was, the kiss was an awkward one. So, are you still in your room when this happens?
A: Correct.
Q: Okay. So, why don't you just describe what happened there?
A: So, after I do the first attempt, I walk back to my side. Everything seemed very fine. I laid right down. Right beside her again. She's by my shoulder, close to it. And then, we continue watching the movie, for a bit. Everything still seems quite fine. And she hasn't said much. We're just enjoying each other's company. I take another toke of the last little bit of weed, I blow it right in, this time I feel like the timing is right. I turn towards her, she looks at me. I look at her. I blew it right into, I blow it right into her mouth, but this time with a little bit of direct contact.
Q: Okay. And how long, when you say direct contact…
[Both counsel and witness are talking]
Court: Can you repeat that?
A: A peck; a pecks, your Honour.
Q: So, did your lips make contact with her?
A: Yes.
Q: Okay. And you blew smoke into her mouth?
A: Mmhmm.
Q: Okay. And, what was her reaction to this?
A: She didn't, she seemed fine, but for me, emotionally, I felt like this kiss could have been better. So, I apologized to her, and I said, I'm sorry about the kiss. And she said, "oh, it was fine."
Q: Did you sense that she was upset in any way, with you, making that kind of contact?
A: Not from the vibes that I was getting, no. Or any of her body language, whatsoever.
Q: Did she say not to do that again?
A: No, sir.
Q: Did she make any other, any type of comment with respect to that kiss?
A: No.
36In the same sequence of the Defendant's cross-examination,[7] he testified that he did not ask to remove the complainant's pants, to kiss her, to come into the bathroom when she was there, to hug her, to lift her onto the counter, to pick her up and place her on the bed, or to make love to her. The Defendant further agreed that he said he wanted to make love to X.F., and she said, "that's fine." When he was asked if the complainant said she wanted to have sex, he said that she did not use those exact words. With respect to kissing, he said, the complainant never said that she did not want him to kiss her, the kiss was fine.
37At this point in the cross-examination the Defendant testified:
Q: Again, and you take, because she doesn't say "no," that to you is a yes?
A: I didn't say that because she didn't say "no," it's a yes. I didn't say that.
Q: Well you did just say, "She didn't say "no."" Correct?
A: Because I'm letting you know she didn't, she didn't object to anything that I'd done to her, nor did I force myself upon her. I'm not that type of person.
Q: Things. She didn't object to things, you had done to her.
A: We had done together, Ma'am. Correction. It takes two to tango.
38There are many parts of the Defendant's testimony that are simply unbelievable. The Defendant's evidence about his statement to the police, where he claimed not to know who the complainant was, and how his statement was the result of fatigue and hunger, is just one example. The Defendant's testimony about his text message apology to the complainant is another.
39In the end, on the critical parts of his testimony, I do not accept as true what the Defendant said about X.F.'s purported consent to have intercourse that night. Instead, I find as a fact that X.F. specifically told the Defendant that her pants were to stay on, and that she did not want to "bang" or "have sex." Despite her clear words, the Defendant chose to disregard her wishes and he took advantage of her physically because she was smaller, younger, and she did not protest when he pursued his desires.
40Where the Defendant's version of events differs from the complainant's, I do not accept the Defendant's evidence as accurate or truthful. I find that the Defendant's evidence was calculated to mislead, and it was unreliable.
41There was no "vibe" that X.F. exuded to permit the Defendant to engage in intercourse with her. I accept the Defendant's evidence that his statement ("I want to make love") was said. X.F. did not deny this. However, she never agreed to this, she never said it was "fine" for him to act on his wishes, and she did not give consent, nor say or do anything from which consent could reasonably have been inferred. To the contrary, I find that the complainant was clear that she was not interested in having sexual intercourse with the Defendant and he simply chose to disregard her stated intentions.
42I completely reject the Defendant's evidence respecting consent from X.F. to have sexual intercourse.
43I have considered whether on all of the evidence it is established that the Defendant could have reasonably held an honest but mistaken belief in consent. In light of the factual findings I have come to, this defence also fails.
44Lastly, I have considered whether the evidence leaves me in a state of reasonable doubt about whether or not the Defendant knew that he did not have consent to have sexual intercourse with X.F. On all of the evidence I accept, I have no reasonable doubt that the Defendant knew that he did not have consent for what took place with X.F.
45Instead, I find that the Defendant wilfully acted, knowing full well that X.F. was not consenting, because he wanted to have sex with her, he had been physically touching her for a sexual purpose all evening, and she had remained silent for the touching at Walmart, when he kissed her while smoking, when he picked her up in the bathroom, and when he carried her onto the bed.
46The Defendant unreasonably took the complainant's acquiescence and lack of complaint as positive evidence of a consent she never communicated, contrary to her expressed sentiments that sexual intercourse was not going to happen.
Conclusion
47X.F. was a believable witness, and I believe her. The Defendant was not a believable witness and I do not accept the majority of his evidence, and especially those parts which contradict the evidence I accept. Based on all of the evidence I accept, I have no reasonable doubt about the non-consensual sexual intercourse that occurred between the Defendant and X.F. on 12 April 2018.
48I find Edgar Alan Pestano guilty of committing a sexual assault upon X.F.
Released: 19 December 2019
Justice G. Paul Renwick
Footnotes
1At the start of the trial I imposed a ban on the publication of any information that may identify the complainant, pursuant to s. 486.4(1) of the Criminal Code.
2See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] S.C.J. No. 77 at paras. 13, 14, 23, 26, 27, 30, 31, 33, 34, 36, 37, and 39.
3R. v. Starr, 2000 SCC 40 (CanLII), [2000] S.C.J. No. 40 at para. 242.
4Exhibit 1A was an agreed statement of fact. Chantel's Place is "located at Trillium Hospital in Mississauga."
5The following excerpts were taken from my notes. At the time of writing this judgment the digital audio recording of the proceedings was unavailable.
6At this point, the witness began to laugh so loudly that it was unclear if she was about to cry.
7This poorly-worded phrase is meant to convey that I am repeating the sequencing employed during cross-examination in recounting the evidence in this paragraph. This footnote was added to the Judgment on 20 December 2019 for clarity.