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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(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 victim of the right to make an application for the order; and
( b ) on application made by the victim, 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.
ONTARIO COURT OF JUSTICE
DATE: 2021 01 04 COURT FILE No.: Toronto, College Park 20-75000805
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SHAWN RENE BANSFIELD
Before: Justice J. W. Bovard
Heard on: November 17, 18, 19, 2020 Reasons for Judgment released on: January 4, 2021
Counsel: Mr. Brannagan..................................................................................... counsel for the Crown Mr. Goldstein .................................. counsel for the defendant Shawn Rene Bansfield
Shawn Rene Bansfield is charged with two counts of sexual assault and two counts of breaching his probation. These charges arose out of incidents on February 10 and 11, 2020.
Disposition
1After the evidence was in, the Crown asked me to dismiss the sexual assault and breach of probation charges dated February 11, 2020. Therefore, I dismiss these charges.
2For the reasons given below, I find Mr. Bansfield not guilty of the remaining sexual assault and breach of probation charges, dated February 10, 2020.
Introduction
3Mr. Bansfield and the complainant knew each other. There is no clear evidence regarding how or when they met, but they met shortly before the alleged incidents took place.
4On February 10, 2020, at around midnight, they arrived at Benjamin Limbach’s apartment. Mr. Limbach and Mr. Bansfield have been good friends for a few years. Mr. Bansfield had introduced the complainant to Mr. Limbach just three or four days prior. Mr. Bansfield and the complainant decided to stay overnight night in Mr. Limbach’s apartment.
5After three or four hours of smoking crystal meth, Mr. Bansfield and the complainant were lying next to each other on the floor at the foot of Mr. Limbach’s bed. Mr. Limbach was lying in his bed nursing a serious and painful hematoma in his leg. The complainant was asleep. Mr. Bansfield and Mr. Limbach were awake, talking intermittently.
6Mr. Limbach testified that after he and Mr. Bansfield stopped talking, he saw Mr. Bansfield slide his hand into the complainant’s pants and masturbate him while the complainant slept. He took two short videos of this on his cell phone.
7Neither the complainant or Mr. Bansfield testified. Mr. Limbach was the only witness called in the trial.
The issues
8The issues are:
a. Identity of the culprit.
b. The reliability of Mr. Limbach’s evidence.
c. Whether the Crown is required to prove the last name of the complainant as particularized in the Information.
d. What effect does the lack of evidence regarding the relationship between the complainant and Mr. Bansfield have on the issue of consent.
The evidence
Admissions
9The defence admits that on the day in question, Mr. Bansfield was bound by a probation order made in the Superior Court in Kingston on March 27, 2017. The probation order is exhibit 1.
Mr. Benjamin Limbach
10Mr. Limbach testified that he and Mr. Bansfield have been good friends for about three years. Mr. Bansfield used to stay over at Mr. Limbach’s apartment frequently. They got along “pretty well” for the most part. He identified Mr. Bansfield as appearing in the virtual courtroom from the detention centre dressed in orange clothing. [1]
11Mr. Bansfield had a stroke approximately one year prior to the incident before the court. As a result, at first, he stumbled a bit and his coordination was not good. He could walk and get around, but he tired quickly. His left hand would be “bent down a lot”. He was much less mobile. He had much less manual dexterity, too. His condition improved with time, but he “was never a hundred percent”. He is not as sure-footed. The symptoms from his stroke are more pronounced at the end of the day when he is tired.
12Around February 6th or 7th, 2020, Mr. Bansfield brought the complainant to his apartment. He remembered his first name, which I will refer to as C. He “believed” that he had a [cultural designation] last name. He said that Mr. Bansfield had introduced him to other men named C. before.
13The following is an exchange between the Crown and Mr. Limbach on this point: [2]
Q. I want to ask you, Mr. Limbach, did you ever meet an acquaintance of Mr. Bansfield’s by the first name of [C.]?
A. Yeah. They’re actually a couple of [C.s] in Mr. Bansfield’s life, but yes.
Q. How about the most recent [C.] that you would have met through Mr. Bansfield?
A. Yes.
Q. Do you remember when that was, that you met that [C.]?
A. Back in February.
Q. Of ....
A. Early February of last – of this – of this year.
Q. Okay. And do you know that [C’s] last name?
A. It starts with an L, some [cultural designation] last name, I think. It’s a [cultural designation] name, I believe.
Q. Okay. And do you remember when it was, in February 2020, that you met [C.] with the [cultural designation] last name?
A. Just early February. I would say probably around, maybe the 6 th or 7 th . Like, probably about a week into the – into the month.
14When C. was not in the room, Mr. Bansfield told Mr. Limbach that C. was his boyfriend.
15At first, in examination-in-chief, Mr. Limbach said that Mr. Bansfield and C. stayed in his apartment for two nights around the 8 th or 9 th of February 2020.
16Later, he told the court that it was the 9 th or the 10 th . He changed the dates because he remembered that on February 11, 2020, he showed C. a video that he took of Mr. Bansfield masturbating him. He remembered that it was the same day that he made his statement to the police. Upon remembering this, he said that the incident occurred on February 9, 2020.
17But when he testified that the incident occurred between 5:30 AM and 6:00 AM, the Crown asked him whether it would not have been February 10, 2020 when the incident occurred. Mr. Limbach agreed that it was February 10, 2020.
18When the incident occurred, Mr. Limbach was bedridden with a hematoma in his leg. He was in considerable pain. He did not get out of bed for eight days.
19On February 9, 2020, the first night that Mr. Bansfield and C. stayed over, they were the only three persons in the apartment. At first, Mr. Limbach said that the complainant was sleeping on the floor “in a sleeping bag” [3] . Later, he said that “he was exposed from the waist up. I believe he was probably on it. If he was in it, it was only just his legs and it would have been open the rest of the way”. [4]
20Mr. Limbach said that when he says that C. was sleeping in a sleeping bag, he means that he was not sleeping on the bare floor. He did not “mean to indicate whether he was fully in, fully out, partly in, partly out, and if so, what part was in, what part was out”. [5] He agreed that none of the video footage that he took shows that C. was in a sleeping bag.
21Mr. Limbach did not see Mr. Bansfield lay down next to C., but he knew that he was lying next to him. He thought that it was odd that Mr. Bansfield chose the side of the complainant where there was very little room “because the way [C.] was – where [C.] was laying centred in the floor, he had a – plenty of room on one side for [Mr. Bansfield] to lay down, but [Mr. Bansfield] chose the other side, which had very little room …” [6]
22Mr. Limbach was in bed, about seven to eight feet from them. The area was illuminated by one or two dim desk type lamps. He could see where the complainant was lying. But he could not see exactly where Mr. Bansfield was lying because he was a little beyond the foot of the bed on the side of the complainant where the bed was. He could not see Mr. Bansfield’s body. He could only see his arm when he “put it out of the area of his body”. [7]
23After he and Mr. Bansfield finished talking, they stayed awake. All three of them were lying down. He saw Mr. Bansfield’s hand go across the complainant’s belly and into his pants. He could see his hand, but he could not see “the rest of the area where [Mr. Bansfield] was laying”. [8] He knew that it was Mr. Bansfield’s hand because they were the only persons in the room.
24After “some manoeuvring, I would say, he was able to pull – pull [C.’s] genitals out of his pants and began stroking him … in a masturbatory fashion, rubbing his penis”. [9] This lasted “about eight to ten minutes, somewhere in there”. Neither Mr. Bansfield nor C. said anything during the event.
25While testifying in-chief, he could not remember which hand Mr. Bansfield used to touch C.’s genitals. The Crown refreshed his memory from the statement that he gave to the police on February 11, 2020. After he refreshed his memory from his statement, he said that Mr. Bansfield used his right hand. This was what he thought when the Crown first asked him, but since he was not sure he did not want to say that it was his right hand. He said refreshing his memory from the statement “confirms to me, in my mind, that it was his right hand”. [10]
26It could not have been C. touching himself because Mr. Bansfield’s hand is a different colour. Moreover, [C.] was asleep, his arms by his side. The hand was coming from “next to [C.]”. [11] Also, Mr. Bansfield “typically has long fingernails”. However, Mr. Limbach agreed in cross-examination that there is no video evidence of a hand with long finger nails.
27It was between 5:30 AM and 6 AM. [12] C. did not react to what Mr. Bansfield was doing. He was “motionless throughout the whole event”. [13] He had been asleep for about an hour. He was not snoring or making any sounds. He had had a “rough few days, so he – he was pretty – pretty well passed out”. [14]
28Mr. Limbach testified that all three of them smoked crystal meth on the night of the incident. In cross-examination, he specified that Mr. Bansfield and C. came to his apartment at around midnight and they smoked crystal meth for three or four hours. [15]
29Mr. Limbach said that the consumption of crystal meth affects one’s memory in varying degrees. He has been addicted to the drug for approximately four years. He admitted that he does not have a clear memory of the time that he was using crystal meth in February 2020. He confessed that,
I don’t have a clear memory. I wouldn’t have a clear memory of that day had I been sober my entire life just ‘cause it’s a little ways back now. But, the total day, do I remember everything that happened, no, I don’t. [16]
30Mr. Limbach also conceded that crystal meth affects one’s perception. [17] He said that this period of time was a “little bit” blurry. And besides, there was a lot going on. [18] During the four of five nights leading up to the morning in question, he was only able to sleep three or four hours a night due to the pain in his leg from a hematoma. He agreed that he was “quite” sleep deprived. [19]
31Within a minute or two of when he saw what Mr. Bansfield was doing to C., Mr. Limbach started to make a video tape of it on his phone. The phone made a “shutter sound” and a beep. When this occurred Mr. Bansfield pulled his hand away quickly. But within a minute or less, he put his hand back into C.’s pants and resumed what he was doing. Mr. Limbach cleared his throat several times to let Mr. Bansfield know that he was awake. He hoped that it would make Mr. Bansfield stop doing what he was doing, but it did not.
32Although the incident lasted eight to ten minutes, he only recorded between a minute and a minute and a half of it. He did not record more because,
Well, the shutter sound cut it short, was an interruption for one thing. And then, also I just – I didn’t really need, you know, a full length video, I just wanted something to show – I wasn’t sure what I was going to do with it at that point. [20]
33Mr. Limbach did not remember if Mr. Bansfield fell asleep before he went to work that morning. Mr. Limbach did not say anything to him about the incident.
34He did not know what to do: tell C. first, or tell Mr. Bansfield first, or go directly to the police. He was concerned about his friendship with Mr. Bansfield. In addition, he wanted to get to know C. better before saying anything to him.
35He got the chance to get better acquainted with C. when Mr. Bansfield went to work the morning of February 10, 2020, leaving him and C. alone in the apartment.
36During the evening of February 10, 2020, when Mr. Bansfield returned from work to Mr. Limbach’s apartment, he tried to flirt with C. He tried to hug and kiss him. He was trying to “be very touchy with him”. Mr. Bansfield engaged persistently in “various types of non-sexual, but I would say lovey, dovey, romantic types of touching, that would be intimate, but not necessarily sexual”. [21] However, C. rebuffed him.
37The next afternoon, Mr. Limbach decided to show C. the video. It was not clear whether he showed him both videos, or just one.
38The fact that without C. knowing, Mr. Bansfield was telling people that C. was his boyfriend, influenced Mr. Limbach to show C. the video(s). C. did not know that Mr. Bansfield was telling people that he was his boyfriend. He was shocked to find this out. C. said that he was not gay. Mr. Limbach never saw C. do or say anything that would make him believe that he invited Mr. Bansfield to do what he did.
39After seeing the video, C. decided to call the police. Sometime later, Mr. Limbach sent the videos to the police.
40Mr. Limbach took several videos of the incident, but some were “just fractions of a second that didn’t show anything”. The two that the Crown adduced are 21, and 55 seconds long.
41The Crown played the 55-second video for Mr. Limbach. He said that it “mostly” accurately and fairly captured the events as he recalled them. He agreed that one can hear C. snoring on the video. Previously, he testified that C. was not snoring.
42The Crown took him through the video and Mr. Limbach described what he saw:
(1) C.’s hand on his own torso and belly button.
(2) C.’s arm and shoulder area.
(3) C. was wearing “some sort of track pants”.
(4) Mr. Bansfield lying next to C. on the floor at the foot of his bed.
(5) Mr. Bansfield’s right hand pulling at the waistline of C.’s pants, lifting up his pants, and then going into C.’s pants with the back of his hand facing down.
(6) Mr. Bansfield’s forearm.
(7) Boxes on his bed.
43Mr. Limbach was in bed when he took the videos. He said that there were boxes on his bed and clothes racks just beyond his bed, either of which could have blocked the view a bit.
44The Crown played the 22-second video for Mr. Limbach. He said that it had a different vantage point because perhaps he was sitting up a little higher when he recorded it. He said that it shows the following:
(1) C.’s belly.
(2) Mr. Bansfield’s hand.
45Mr. Limbach said that at the end of the video he “thought he actually exposed the genitalia, but now I can’t tell for sure from the – yeah he has his hands on his genitalia there, I believe”. [22] However, he also agreed that neither video shows C.’s genitalia exposed.
46But regardless of what is on the videos, he remembered that Mr. Bansfield had his hand on C.’s genitalia. His hand was operating “pretty smoothly and with a pretty high degree of manual dexterity …” [23]
47The defence put to Mr. Limbach that given his state of sleep deprivation, and that he had just used crystal meth, coupled with not remembering if his door was locked, another person could have come into his apartment and laid down where Mr. Bansfield was lying. Mr. Limbach said that this was not possible. He would have seen this.
48The 55-second video was made exhibit 2 on consent. The 22-second video was made exhibit 3 on consent.
49A power point that contains both videos was made exhibit 4 on consent.
50That was all the evidence.
The position of the Crown
51The Crown asked that I dismiss counts 2 and 4. These are one count of sexual assault and one count of fail to comply with probation that relates to the sexual assault. These counts concern Mr. Bansfield’s alleged flirting with C. on February 11, 2020.
52Regarding the two remaining counts of sexual assault and the breach of probation that relates to it, the Crown submits that he proved beyond a reasonable doubt that Mr. Bansfield is guilty of both charges. The offence date for these counts is February 10, 2020.
The sexual assault
53The Crown submits that Mr. Limbach is a credible witness whose evidence is corroborated to a large degree by the two videos that he took of the incident. Although the videos are of poor quality, they depict what Mr. Limbach says they do.
54Mr. Limbach considers Mr. Bansfield to be a good friend. He does not have any reason to falsely accuse him. He was an honest witness in that he admitted when he did not know something. In addition, he did not try to hide his faults and shortcomings. He admitted that he was addicted to crystal meth and that on the night in question, he used crystal meth.
55Mr. Limbach had a good vantage point from which to observe what he says Mr. Bansfield was doing. His evidence held steady through out the trial. It never changed in any material way.
56The Crown made submissions regarding whether the complainant could have consented to the sexual touching that Mr. Limbach alleges occurred. I agree that the law is clear that in the circumstances of this case where there is no dispute that the complainant was asleep when the alleged touching took place, there could be no consent. Subsection 273.1 (2) (a.1) of the Criminal Code states that no consent is obtained if “the complainant is unconscious”.
57The Crown submitted that if the court finds Mr. Bansfield guilty of the sexual assault charge, it follows that he is guilty of breaching the condition of his probation order that he keep the peace and be of good behaviour.
The position of the defence
The sexual assault
58The defence made three arguments.
59First, there is no evidence of the complainant’s last name as it is particularized in the Information. Therefore, the Crown failed to prove the charge as particularized, which is a fatal flaw.
60Defence counsel cited R. v. Saunders, [1990] 1 S.C.R. 1020 and R. v. Lauzon, 2007 ABQB 465 in support of his argument.
61Lauzon was a Crown appeal to the Alberta Court of Queen’s Bench from an acquittal at trial. In paragraphs 12, 13, Veit, J. held that,
…. where, as here, the Crown particularizes the name of a complainant or victim, either in the initial charge or in subsequent particulars, the Crown must prove the identity of that individual. As the Crown itself acknowledges, that obligation arises from the general law which requires the Crown to prove, beyond a reasonable doubt, all of the particulars of an offence charged: Saunders .
62At paragraph 14, Veit J. explained that,
While the principle that whatever is particularized must be proved is well established, it is useful to recall that the principle is linked to the invocation of the constitutional protection against double jeopardy: an accused is entitled to plead autrefois acquit or autrefois convict in relation to a criminal delict at the conclusion of a trial.
63In paragraph 17, Viet J. found that the only evidence of the complainant’s identity was hearsay, however,
a trial judge might, on a principled application of the hearsay rules, have admitted the police officer's hearsay evidence concerning the identity of the complainant for the truth of that identity; however, in the circumstances here, that approach was not considered by the trial judge.
64Therefore, Veit, J. allowed the appeal and ordered a new trial.
65Veit J. relied on Saunders , therefore I will explain the holding in that case.
66In paragraph 1, McLachlin J. stated the issue as follows:
The question on this appeal is whether the trial judge erred in instructing the jury on a charge of conspiracy to import heroin that they might convict if they were satisfied beyond a reasonable doubt that the accused had [page1022] conspired to import any narcotic prohibited under the Narcotic Control Act.
67At the outset of the trial, the Crown stated that it intended to prove that the accused conspired to import heroin.
68As the trial progressed, “ it became clear that the imported drug by which the Crown intended to prove a major element of the alleged conspiracy was not heroin but cocaine”. [26]
69This raised the issue of,
whether the judge should charge the jury that they could convict the accused in the absence of proof that they conspired to import heroin, and that it was sufficient to support a conviction that the jury be satisfied that the accused had conspired to import a narcotic of any [page1023] kind. The trial judge so charged, and the jury convicted the accused. [27]
70The accused appealed. The Court of Appeal overturned the conviction and ordered a new trial. The Crown appealed this finding to the Supreme Court of Canada. McLachlin J. stated that,
It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved. In Morozuk v. The Queen, [1986] 1 S.C.R. 31, at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other than the one specified is proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial": R. v. Côté, [1978] 1 S.C.R. 8, at p. 13 . [28] (emphasis added)
71The Supreme Court of Canada dismissed the Crown’s appeal and ordered a new trial saying,
There must be a new trial in this case, not because a conviction for conspiracy to import a narcotic cannot be supported without proof of the type of narcotic involved, but rather because the Crown chose in this case to particularize the drug involved and failed to prove the conspiracy thus particularized.
72The defence argues that it is important in the case at bar that the Crown prove the offence as particularized because Mr. Limbach testified that there was more than one “C.” in Mr. Bansfield’s life. Therefore, the particulars regarding the complainant’s name as stated in the Information play a crucial part in Mr. Bansfield being able to identify the transaction that the Crown is alleging against him, which is the point of providing particulars in the first place.
73The Crown’s reply to this is that,
So, with respect to the Crown – the suggestion the Crown did not prove the victim being [the person particularized in the Information], I would just say that you can take circumstantially from the evidence you heard that, Mr. Limbach said he did know some [C.s], but this was [C. “X”] with a [cultural designation] name from [geographic location]. And we heard, in great detail, about that. There was conversation between Mr. Limbach and [C.], it sounded like the day after the assault itself occurred, and that that information was gleaned by Mr. Limbach and that was his understanding of who this [C.] person was. [29]
74In a written submission, the Crown cited “from Ewaschuk”. I am not sure which edition or page number. Nor, am sure whether the bolded and italicized words appear in the original or if the Crown added this emphasis himself.
Similarly, the “ identity of the victim of a crime” generally is considered to be surplusage so that the Crown is not bound to prove the identity of the victim particularized in the indictment so long as the evidence relates to the transaction charged in the indictment. R. v. Melo (1986), 29 C.C.C. (3d) 173, 15 O.A.C. 6 (Ont. C.A.), at p. 181 ; R. v. Vézina, [1986] 1 S.C.R. 2, 23 C.C.C. (3d) 481, 25 D.L.R. (4th) 82, 49 C.R. (3d) 351, 64 N.R. 93 S.C.C.)
75In Vézina (para. 49 ), Lamer J. explained the “surplusage rule”:
The "surplusage rule", which has been developed by the courts over a great many years, is succinctly stated as follows, in Ewaschuk, Criminal Pleadings and Practice in Canada (1983), at pp. 222-23:
If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e., a non-necessary which need not be proved.
76However, Lamer J. added the important caveat that the “surplusage rule” is “subject to the proviso that the accused not be prejudiced in his or her defence (para. 55).
77Lamer J. noted in paragraph 59, that in R. v. Elliott, [1976] 4 W.W.R. 285, McIntyre J.A. (as he then was) stated at p. 289:
It is clear in my view that where the Crown gives material particulars in an indictment it must prove them. A long list of authorities supports this proposition. It is of course true that immaterial or non-essential averments in indictments need not be strictly proved if no prejudice results to the accused.
78In the case at bar, the defence maintains that just providing evidence that the complainant’s name is C., is not sufficient to identify him without proof of his last name as particularized in the Information.
79In Vézina (paras.61-62), Justice Lamer cited R. v. Little and Wolski (1973), 14 C.C.C. (2d) 531. An admittedly loose analogy can be drawn from that case to the case at bar.
In the case of R. v. Little and Wolski (1973), 14 C.C.C. (2d) 531, the accused were charged with theft from "Westwood Jewellers Limited". The evidence established that the store from which the items were stolen was known as "Westwood Jewellers". Matas J.A. , speaking for the Court of Appeal of Manitoba, emphasized at pp. 537-38 that:
In the case at bar, use of the corporate name in the indictment did not mislead in any way; the accused had sufficient knowledge, by the indictment, of the circumstances of the offence; they had reasonable information with respect to the act alleged in the indictment sufficient to identify the transaction. There was no prejudice to them. (emphasis added)
The judgment of the Court of Appeal was confirmed by the Supreme Court of Canada, , [1976] 1 S.C.R. 20. De Grandpré J., for the majority, stated at p. 26:
... on the whole of the evidence, it is clear that the accused have been given sufficient information about the circumstances of the alleged offence and were at all times in a position to identify the transaction referred to in the indictment . Accordingly, it is my view that they have received a fair trial. (emphasis added)
Dickson J. (as he then was), with whom Beetz J. concurred, agreed with the result and stated, at p. 32:
In my view, the evidence in this case reasonably identified the owner of the stolen diamond rings with the person named in the indictment as owner, and the accused were in no way misled or prejudiced in their defence by failure to prove identity with greater precision.
80In the case at bar, the Information particularized the first and last name of the alleged complainant. The Crown only proved the first name of the complainant. However, I find it hard to see how this prejudiced Mr. Bansfield.
81Mr. Limbach’s evidence was that “They’re actually a couple of [C.s] ’s in Mr. Bansfield’s life”. That is only two. I find that Mr. Bansfield would know which one it was on the night in question. He had just met and introduced him to Mr. Limbach a few days prior to the alleged sexual assault. In addition, there is plenty of evidence regarding the date, place and circumstances of the alleged sexual assault. Therefore, in the case at bar, I find that Mr. Bansfield would not have any problem determining which C. the Crown is alleging that he sexually assaulted.
82The case at bar is not a case like Saunders where “To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial". (emphasis added)
83I find that in the case at bar the evidence reasonably identifies the alleged complainant. I find further that Mr. Bansfield was “given sufficient information about the circumstances of the alleged offence and [was] at all times in a position to identify the transaction referred to in the [Information]”. Therefore, this argument fails.
84The second defence argument is that there is no evidence concerning the relationship between Mr. Bansfield and C. Defence counsel submitted that,
the Crown did not introduce any direct evidence from the alleged victim regarding the nature of the relationship between Mr. Bansfield and the alleged victim regarding the subjective understanding of any sexual encounter alleged in this – alleged in this case or regarding any evidence at all, which is normally central in any sexual assault case. Nor has the Crown provided any precedent that - that such a case should be – such a charge should be able to proceed in the absence of this evidence. [31]
85I do not understand this submission considering that subsection 273.1 (2) (a.1) of the Criminal Code, states that no consent is obtained if “the complainant is unconscious”. There is no doubt that C. was sleeping during the alleged sexual assault. Therefore, what does it matter what kind of relationship they had? I do not find any merit in this argument. See: R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, para. 3 where McLachlin C.J. stated,
Our task on this appeal is to determine whether the Criminal Code defines consent as requiring a conscious, operating mind throughout the sexual activity. I conclude that the Code makes it clear that an individual must be conscious throughout the sexual activity in order to provide the requisite consent. Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.
86The third defence argument is that Mr. Limbach’s evidence is unreliable due to his use of crystal meth on the night in question, his lack of sleep, the pain in his leg, and his ability to observe the incident that he alleges occurred.
87The defence maintains that Mr. Limbach’s testimony was inconsistent and contradictory. For example, that he turned off his video camera because the noise that it was making noise might alert Mr. Bansfield that he was watching him, but later he faked a loud cough to let him know that he was watching him.
88I think that the answer to this argument is that Mr. Limbach testified that he wanted a video tape of what Mr. Bansfield was doing. His evidence was:
Well, the shutter sound cut it short, was an interruption for one thing. And then, also I just – I didn’t really need, you know, a full length video, I just wanted something to show – I wasn’t sure what I was going to do with it at that point. [33]
89If his phone made noises that alerted Mr. Bansfield, this would thwart his purpose. That is why he turned off the camera. His coughing later was for the purpose of getting Mr. Bansfield to stop what he was doing. This was after he had his videos. Therefore, I do not find an inconsistency.
90The defence pointed to Mr. Limbach saying that Mr. Bansfield has long fingernails but admitted that the hand that one sees in the video does not.
91The defence also submitted that what Mr. Limbach testified occurred is significantly different from what is seen in the video tapes. For example, he testified that the person lying on the sleeping bag did not snore. The video evidence shows that the complainant was snoring.
92Further, Mr. Limbach said that C. was in a sleeping bag. He later modified this to indicate that he was lying on it, or partially in it. Then when he saw the video, he admitted that C. was not in the sleeping bag at all.
93The defence points out that Mr. Limbach testified that Mr. Bansfield took out C.’s genitalia, but the video does not show this. However, the defence concedes that Mr. Limbach said this occurred at the end of the encounter, after he stopped taping.
94The last point that the defence made regarding Mr. Limbach’s evidence is that considering that Mr. Bansfield had had a stroke, which impaired his motor functions, he could not have performed the delicate maneuvers that Mr. Limbach said he did in taking out C.’s genitalia and masturbating him. This would be especially true when he was under the influence of crystal meth and tired.
95The fact that there is no medical evidence, and scant, if any, non-medical evidence regarding Mr. Bansfield’s manual dexterity greatly attenuates this argument.
Disposition
96The Crown must prove the charges beyond a reasonable doubt. To do this, he relies on Mr. Limbach’s testimony and the video evidence.
97Regarding Mr. Limbach’s evidence, I find that his capacity to accurately observe, perceive, and recall the events is unreliable for the following reasons:
- He had smoked crystal meth during the three hours leading up to the alleged sexual assault.
- He said that the consumption of crystal meth affects one’s memory in varying degrees. He admitted that he did not have a clear memory of February 2020 due to his use of the drug. This period of time was a “little bit” blurry for him. In addition, he was “quite” sleep deprived because he had not been able to sleep due to the pain in his leg from the hematoma. This would also affect his perceptual capacity.
- Moreover, he testified that he would not have a “clear memory of that day had I been sober my entire life just ‘cause it’s a little ways back now. But, the total day, do I remember everything that happened, no, I don’t”.
- He admitted that the use of crystal meth affects one’s perception.
- During the alleged sexual assault, he was in his bed, about seven to eight feet from Mr. Bansfield and the complainant. The room was lit by two dim desk type lamps. These were not optimal viewing conditions for someone in his mental and physical state on the morning in question.
- He testified that during the alleged assault, the complainant was asleep and did not make any sounds. The video evidence showed that his recollection of this was incorrect because it shows that the complainant was snoring.
- When he took the videos there were boxes on his bed and clothes racks just beyond the bed. He admitted that both things could have partially blocked his view.
- He testified that Mr. Bansfield exposed the complainant’s genitalia. But the video evidence did not support this. His effort to reconcile this was not reliable. He said that at the end of the video he “thought he actually exposed the genitalia, but now I can’t tell for sure from the – yeah he has his hands on his genitalia there, I believe”. But he also agreed that neither video shows C.’s genitalia.
98For these reasons, I find that I cannot accept Mr. Limbach’s evidence that Mr. Bansfield sexually assaulted C.
99Regarding the video evidence, I find that it is of such poor quality that it does not assist me in determining what happened during the events that Mr. Limbach purported to describe. The videos are very dark. The resolution is quite poor. I watched them carefully on several occasions, but I find that it is impossible for me to tell with sufficient clarity what is occurring in them, much less that Mr. Bansfield was sexually assaulting the complainant.
100Even after considering all the evidence in its totality, I am left in reasonable doubt that Mr. Bansfield sexually assaulted the complainant. Consequently, I find him not guilty of sexual assault and of the concomitant breach of probation.
Released: January 4, 2021 “Signed” Justice J. W. Bovard
References
[1] Transcript, November 17, 2020, pgs. 20-22 [2] Ibid., p. 24, lines 8-28 [3] Ibid., p.33, lines 15-16 [4] Ibid., p. 37, lines 20-22 [5] Transcript, November 18, 2020, p. 11, lines 27-30 [6] Ibid., lines 17-20 [7] Ibid., p. 159, lines 10-14 [8] Transcript, November 17, 2020, p.38, lines 22-23 [9] Ibid., p. 39, lines 25-29 [10] Ibid., p. 44, lines 6-7 [11] Ibid., p. 39, lines 7-9 [12] Ibid., p. 54, lines 8-9 [13] Ibid., p. 40, line 9 [14] Ibid., p. 35, lines 15-20 [15] Ibid., p. 153, lines 18-24; p. 154, lines 24-34 [16] Ibid., p. 121, lines 7-10 [17] Transcript, November 18, 2020, p. 16, lines 1-18 [18] Transcript, November 17, p. 121, lines 29-34 [19] Transcript, November 18, 2020, p.16, lines 10-12 [20] Transcript, November 17, 2020, p. 48, lines 21-26 [21] Ibid., p. 61, lines 2-5 [22] Ibid., p. 94, lines 31-34; p. 35, line 1 [23] Transcript, November 18, 2020, p.14, lines 11-13 [24] , [1990] 1 S.C.R. 1020 [25] 2007 ABQB 465 [26] Para. 2 [27] Para. 3 [28] Para. 5 [29] Transcript, November 19, 2020, p. 38, lines 11-22 [30] , [ 1976] 4 W.W.R. 285 [31] Transcript, November 19, 2020, p. 37, lines 8-17 [32] 2011 SCC 28 , [2011] S.C.J. No. 28, para. 3 [33] Transcript, November 17, 2020, p. 48, lines 21-26