ONTARIO COURT OF JUSTICE
COURT FILE No. 2811-998-34045-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
R.B.
Before Justice F. Javed
Heard in-person and by videoconference: January 4, 5, 6, 7, 8, 2021
Reasons for Judgment rendered by videoconference: February 16, 2021
S. Thompson counsel for the Crown
K. Manitius counsel for R.B.
F. Javed J.: -
I. Introduction
1On December 15, 2018, R.B. attended a Christmas party hosted by his employer at the Hilton Garden Inn in Ajax. At the time, R.B. was employed by the hotel as a maintenance manager, thus had access to exclusive keys granting him access to hotel rooms. R.B. attended the party as a guest and had planned to drink alcohol, so the hotel provided him with a complimentary room to stay overnight. M.H. was a former co-worker and employee of the hotel who also attended the party. She too planned to drink alcohol but did not make plans to stay overnight. Her plan was to take an Uber taxi home. By the end of the party, M.H. had drank too much alcohol and became intoxicated. Work colleagues determined she was too drunk to get home safely so a plan was devised that she would stay in R.B.’s assigned hotel room and he would stay in a different room. R.B. agreed to switch rooms. He and a colleague helped a very drunk M.H. to his hotel room and he took a different room. What happened next is the subject of these trial proceedings.
2The Crown’s theory is R.B. broke into M.H.’s room (R.B.’s former hotel room) while she was drunk and asleep, with the intention to commit a sexual assault on M.H. who did not have the capacity to consent to any act. Further, the Crown says R.B. succeeded in committing a sexual assault. The specific sexual act was not particularized by the police, but the Crown says it occurred in one of two ways. The primary theory of liability arises from the Crown’s evidence which alleges R.B. was naked from the waist down and on top of M.H. ostensibly having sexual intercourse with M.H. who was asleep. This theory is premised on the evidence of the manager on duty, C.B. who testified he saw R.B.’s naked body on top of M.H. By the end of the trial, the Crown posited an alternative theory of liability which the Crown argues arises from R.B.’s evidence, namely, he touched her body with toilet paper around her vaginal area, which according to R.B., was because she had urinated in the bed. This latter act was admitted by R.B., but denied it was committed for a sexual purpose. The Crown invites the court to reject R.B.’s denial of committing a sexual act and find him guilty of both offences.
3R.B. was charged with the offences of break and enter and commit therein the indictable offence of sexual assault contrary to s.348(1)(b) of the Criminal Code and the offence of sexual assault, contrary to s.271 of the Criminal Code. He was not charged with break and enter with intent to commit a sexual assault under s.348(1)(a) which as I will explain makes a difference because of the different fault requirements.
4The Crown proceeded by indictment on both counts and R.B. elected to have his trial in the Ontario Court of Justice.
5A trial was conducted before me with all parties, including R.B., appearing by videoconference for all portions of the trial, with the exception of Ms. Manitius who appeared in person for the evidence of a central witness (C.B.). He was cross-examined at length in the courtroom. I heard submissions by videoconference and reserved judgment. Given the time exigencies, I invited written submissions by the parties on two discrete legal questions: (i) What is the mens rea for the break and enter and commit the offence of sexual assault offence in count 1 and (ii) What offences, if any, are included in counts 1 and count 2 (the sexual assault offence). I adjourned the matter to January 20, 2021 to receive the written submissions. On February 16, 2021, the matter continued with the court inviting oral submissions on the two issues in the presence of R.B. to avoid a procedural error.1 These are my reasons for judgment.
A. Virtual Hearing
6Some procedural history is necessary to explain how and why the trial proceeded by videoconference on the Zoom platform. R.B.’s trial was scheduled to commence on January 4, 2021 estimated to last one week. A few days prior to the trial commencing, Ms. Manitius alerted all parties she would be seeking a virtual trial in light of the health and safety concerns caused by the COVID-19 pandemic and the recommendation of the Chief Justice of the Ontario Court of Justice that virtual trials should be encouraged, where possible.
7In view of the above communication and mindful that R.B.’s charges might demand an in-person hearing in light of the Crown’s indictable election, I convened an emergency hearing by audioconference with directions to the parties to file the appropriate applications seeking the various orders. I heard this application on short notice by audioconference. Unfortunately, I was advised R.B. was unavailable to attend during the audioconference hearing, but Ms. Manitius was retained and had instructions to proceed in his absence. In view of the mutual consent to have a virtual trial, I alerted the parties of my intention to grant the orders sought under s.715.22 permitting all parties to participate by videoconference, an order under s.650(2)(b) permitting R.B. to be “out” of the courtroom for all part of the trial proceedings provided he attended virtually by videoconference on my terms and conditions and an order under s.714.1 permitting the Crown to have witnesses testify remotely by videoconference should the Crown choose to pursue this option. I indicated I would invite further submissions on terms and conditions to these orders in the presence of R.B. and I would render a fulsome ruling in his presence. I also directed that that I would order a transcript of the audio hearing and have it attached to the information to complete the court record.
8On January 4, 2021, R.B. was arraigned and entered a not guilty plea. I granted the various orders sought by the parties to proceed as a virtual trial after hearing further submissions. I provided an oral ruling to this effect and set terms and conditions to ensure a lawful virtual hearing. I explained, inter alia, the orders would only be permitted if the parties adhered to the courts plan to ensure a fair hearing where all parties could hear and see each other. In doing so, I was persuaded by the analysis of Justice Lemon in Re: Court File No. 19/578.2
9With respect to testimony by videoconference, I directed counsel as officers of the court to review the courts terms and conditions with all witnesses prior to testifying. As the trial progressed, there were no technological issues as counsel cooperated in ensuring a fair hearing. I commend the parties for taking a collaborative approach in dealing with exhibits and the presentation of the video evidence. Even though the issues in this case turn on a credibility and reliability assessment, a fair hearing was not compromised as I was able to assess demeanor in the same way as I would inside the courtroom. The technology worked perfectly and throughout, R.B. assured me he could see and hear everybody without issue.
B. The Trial Record
10The Crown’s case rests primarily on the direct evidence of the manager on duty: C.B. Apart from R.B.’s account which is subject to a credibility and reliability evaluation, proof of the offences also turns on an assessment of circumstantial evidence. This is not uncommon in cases where a complainant cannot offer direct evidence about being sexually assaulted because of little or no memory as a result of being intoxicated or not having the capacity to consent, for example, by being asleep.
11This was one issue faced by the Crown in this case because M.H. could not testify she remembered being sexually assaulted or remembered not communicating consent, as she had no memory of the events. Indeed, she testified she was told she was sexually assaulted and came to believe it because of the circumstances which included waking up in the morning in R.B.’s assigned hotel room with her underwear removed and finding herself in a urine-soaked bed. In addition, she found a pair of boxer briefs that did not belong to her which meant nothing at the time, but later fortified her acquired belief that she might have been sexually assaulted. As the evidence established, there is no physical or forensic evidence that supports proof of a sexual assault even though both were pursued by M.H. later on. In the end, M.H. told defence counsel: “it didn’t feel like anything happened”.
12The Crown called a number of witnesses who testified about the events at the party. All but one testified by videoconference as the parties agreed to have C.B., testify live as counsel preferred testing his evidence in the courtroom. In addition to M.H., the Crown called the manger on duty prior to C.B.: W.H., the food and beverage manager: A.A., the catering manager: S.H. and the hotel manager: J.C. In addition, the Crown relied on video footage taken from the hotel which depicted events outside M.H.’s hotel room and footage of other areas in the hotel including the front desk. The video footage did not have any audio and for reasons I will explain, was an important silent witness in the trial: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. Indeed, much of what is seen happening outside M.H.’s hotel room is not in dispute because of the video footage. It is what allegedly happened inside the hotel room, which is not captured by video footage, which is the subject of the credibility dispute in this trial.
13R.B. testified in his defence and offered a counter narrative to the allegations. His overall position is he admits entering M.H.’s hotel room but explained it was not with the specific intention of “breaking-in” to the room. Rather, it was for the sole purpose of retrieving his toiletries and keys which were left behind when he was rushed out to make way for M.H. to occupy his room. Further, he denied committing any sexual act on M.H., claiming the only time he touched M.H. was to help her clean up urine with toilet paper after he heard her urinate in bed when he was in the room retrieving his personal effects.
14The Crown sought to lead evidence of R.B.’s utterances to C.B. and S.H. after finding him hiding in the closet of M.H.’s hotel room, after C.B. says he walked in on him sexually assaulting her. Both confronted R.B. about why he was in the room which generated an explanation which the Crown says is inculpatory. Ms. Manitius objected to the admissibility of these utterances on two bases: (i) they are hearsay which are inadmissible and/or (ii) the prejudice of the utterances exceeded any probative value as R.B. was intoxicated at the time. In other words, they were not reliable and should not be admissible. This issue arose without notice during the examination-in-chief of C.B. and after hearing submissions, I was less persuaded on the hearsay objection because the utterances were admissions against interest but more persuaded that the cost benefit analysis of the disputed evidence required a voir dire. I was told by Ms. Manitius that if R.B. testified, he would dispute the contents of what R.B. attributed to him. S.H. had yet to testify thus it was unclear what he would say he heard if anything. In the end, S.H. did not recall what was said thus the issue turned on C.B.’s evidence. As a result, the parties agreed to a blended voir dire and have the court rule on the issue at the end of the trial. In other words, the parties did not insist on a mid-trial ruling as Ms. Manitius had not yet determined if R.B. would testify in his defence. In my view, this was a sensible way to proceed because I had to first make findings of fact about what was actually said by R.B. before I could use it for any evidentiary purpose. In the end, R.B. testified about what he said to R.B. within the voir dire. He was cross-examined on this evidence. The parties agreed to have any evidence that would be deemed admissible apply to the trial issues. I heard submissions about what findings I should make and depending on these findings, its admissibility. As a preview, I have found as a fact that C.B.’s evidence of what R.B. said is credible and these utterances are admissible both as admissions against interest and because the cost benefit analysis weighs in favor of admitting them. Any issues about the quality of R.B.’s explanation to C.B. goes to weight.
15Ms. Manitius made reasonable admissions including date, identification and jurisdiction. She also conceded the admissibility of video footage filed as Exhibits 4 to 7 and a Keycard Control Log, filed as Exhibit 2. This log describes who was assigned what key on the date in question. Mr. Manitius also conceded the admissibility of an Interrogation Report as Exhibit 3 as a business record under the Canada Evidence Act. Exhibit 3 provides a record of what room was opened and with what key. The Crown says these business records act as confirmatory evidence of Crown witnesses who testified about what they did on the night in question – some of which is captured on video footage. Exhibit 3 provides an objective record of what key was used to open the room occupied by M.H. and along with the video footage, helps to prove who opened the room. Again, not much turns on who opened the room but rather what happened inside the room.
16Finally, the trial record includes an Agreed Statement of Fact under s.655 of the Criminal Code which describes the evidence of Officer Derek Williams of the DRPS who was provided access to the video footage in the Hilton Garden Inn (Exhibits 4 to 7). These facts were reduced to writing in Exhibit 8. The seminal findings to be taken from Exhibit 8 are (i) DVR-2 which contains video footage on Channels 03 [Exhibit 7], 04 [Exhibit 5] and 12 [Exhibit 6] was behind in time by 14 seconds and (ii) DVR-3 which contains video footage on Channel 06 [Exhibit 4] was behind in time by 11 minutes and 52 seconds. This acknowledged time difference will be taken into account when I consider the video footage on the various channels.
C. The Issues
17In view of the positions of the parties, these reasons will address three broad legal issues and some sub-issues. They can be framed as follows:
(1) Are the out of court utterances of R.B. to C.B. and S.H. admissible? If so, for what purpose?
(2) In view of the admissible evidence, has the Crown proven the two offences as charged beyond a reasonable doubt? Within this question, I must resolve the following:
a. Did R.B. intentionally “break” into room 116?
b. Did R.B. voluntarily “touch” M.H. resulting in an unlawful assault?
c. Did M.H. not consent to the touching or unlawful assault?
d. If applicable, did R.B. honestly believe M.H. consented to the touching or unlawful assault and
e. Was R.B.’s proven contact, objectively viewed, committed in circumstances of a sexual nature?
(3) If the Crown cannot prove the offences as alleged, has the Crown proven any included offences beyond a reasonable doubt?
18Sub-issues 2(c) and 2(d) above have no application in this case. In other words, the defence position is R.B. did not apply force to M.H. for a sexual purpose where consent would be an issue. There is little controversy that M.H. had no capacity to communicate consent because of alcohol consumption and because she was asleep. Both would prevent her from being able to voluntarily communicate consent for purposes of s.237.1(1) and (2) of the Criminal Code.3 Informed consent depends on an understanding of the risks and consequences of understanding the sexual nature of the act and the right to choose not to participate. 4 This case does not turn on proof of lack of consent. The defence position tested the extent of M.H.’s level of intoxication to test the credibility and reliability of C.B.’s evidence that she was sexually assaulted as observed by him. In other words, the defence tested the account of M.H. to establish while she was drunk, she was not so drunk where she would not have known if somebody was having intercourse with her or trying to have intercourse with her.
19The live issues in this case turn on an assessment of credibility and reliability and in particular, the denial of R.B. in committing the two acts, when viewed in context of the evidence as a whole. An obvious pillar in the Crown’s case is the evidence of C.B. who purported to see R.B. naked from the waist down and on top of M.H., while she was on the bed with her legs spread. He also testified R.B. was ‘moving up and down’ on her body. R.B. admitted he was in the room but advanced his urine cleaning explanation and denied being naked at any point.
20For reasons that I will develop below, I have concluded the evidence as a whole establishes R.B.’s guilt beyond a reasonable doubt on both counts, but only goes as far as proving the Crown’s alternative theory of liability. In other words, the evidence does not prove R.B. had sexual intercourse with M.H. who was drunk and asleep. Rather, the evidence does prove beyond a reasonable doubt that R.B. was on top of M.H., while naked from the waist-down with his penis exposed and M.H. was not in a position and did not consent to this act. I have determined the Crown has proven this act constituted “touching” for purposes of the law, as it was an act or gesture by R.B. who attempted to apply force to M.H. while having the contemporaneous ability to carry out his purpose and it was offensive conduct which was an affront to M.H.’s dignity. Viewed objectively, it was therefore a sexual act. It is my view that R.B. was taking steps to commit a more invasive sexual act before he was intercepted by C.B. entering the hotel room. I have concluded the evidence easily proves R.B. broke into M.H.’s room using a master key assigned to him knowing or at the very least reckless to the belief that he was not permitted to be in the room. The evidence does not prove he entered the room with the purpose of committing a sexual act but does prove he committed one while inside the room. Given the unusual factual matrix and the various pathways to an acquittal, I will spend some time explaining the legal principles before I summarize some of uncontested evidence, then turn to my findings and analysis which requires a credibility evaluation.
II. The Legal Principles
A. Sexual Assault
21Count 2 on the information alleges the offence of sexual assault contrary to s.271 of the Criminal Code. A sexual assault is an assault that is committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated". 5 The Crown must prove performance of the act and a corresponding mental component beyond a reasonable doubt. A failure to prove an element will result in an acquittal on the offence as alleged but the possibility of proving an included offence of assault under s.265(1) of the Criminal Code. Section 265(2) of the Criminal Code makes it clear that the assault provisions apply to all forms of assault including a sexual assault.
22The actus reus of sexual assault is established by proof of three elements: (i) voluntary touching (ii) of a sexual nature and (iii) done without the consent of the complainant.6 The touching element is determined objectively and it is sufficient for the Crown to prove R.B.’s actions were voluntary.7 Moreover, the touching element of the offence of sexual assault is met by any direct or indirect application of force to another person, no matter the degree of strength or power applied.8 The touching element of the offence can also be met by proof of R.B. committing an act or gesture that attempts or threatens to apply force to M.H. provided he has a contemporaneous ability to carry out his purpose or causes M.H. to believe as much.9 The law provides that a sexual assault can occur even in the absence of actual physical contact.10 The sexual nature of the offence is determined objectively as the Crown does not have to prove R.B. had any mens rea with respect to the sexual nature of his conduct. 11 A court must ask itself, "viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?". The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which it occurred, and the words and gestures accompanying the act.12
23The intention or mens rea is established by proof of (i) an intention to touch and (ii) knowing of, or being reckless of or wilfully blind to, lack of consent.13 Sexual assault is a crime of general not specific intent, thus a person’s intention in committing the act is usually inferred from the performance of the act (i.e. the assault). The Crown need not prove R.B. had any specific mens rea with respect to the sexual nature of his behaviour. Stated differently, a finding of sexual assault does not require proof of an improper or ulterior purpose.14 The intent or purpose of the person committing the act may be a factor in considering whether the conduct was sexual but it is only one factor to be considered in the analysis.15
24It is common ground that the offence of assault simpliciter is an included offence of sexual assault. Therefore, if the Crown proves non-consensual touching of M.H. but fails to prove it was for a sexual purpose, the offence of assault under s.266 would have been made out. 16
B. Break and Enter and Commit an Indictable Offence
24Count 1 on the information alleges an offence of break and enter and commit the indictable offence of sexual assault under s.348(1)(b) of the Criminal Code. The Crown must prove the actus reus of the offence which requires proof that R.B. “broke” into M.H.’s room. The definition of “break” is found in s.321 which includes “to open anything that is used or intended to be used to close or to cover an internal or external opening”. There is no controversy R.B. entered room 116 which was locked, after he switched rooms into room 201. R.B. used his grand master key and the key was not used while he was working. This easily makes out the actus reus of the offence.
25The Crown must also prove a co-existing mens rea to sustain a conviction. I invited written submissions on this issue. Both counsel responded in writing and declined the courts invitation to make oral submissions when we convened in the virtual courtroom. Both counsel agree the mens rea component for this offence is one of general not specific intent. I agree.17 General intent offences are those that are done to achieve an immediate end, not requiring mental acuity and not part of a larger or secondary objective.18 In R. v. Daley,19 Bastarache J. distinguished between general and specific intent offences by stating: “specific intent offences require the mind to focus on an objective further to the immediate one at hand, while general intent offences require only a conscious doing of the prohibited act”. Further, Ms. Thompson submits the Supreme Court has held that intoxication is not a defence to this general intent offence.20 Ms. Manitius does not disagree.
26Sections 348(2)(a) and (b) create two rebuttable presumptions in relation to breaking in or out of a place. Ms. Manitius argues these two presumptions don’t apply to R.B.’s case because he was not charged under s.348(1)(a) which involves the offence of break and enter with intent to commit an indictable offence. I agree with this submission. The offence in s.348(1)(a) is a specific intent offence by virtue of its specific reference to the term ‘with intent’ which is not the case in s.348(1)(b). The rebuttable presumptions provide an evidential assist to the Crown in proving the mens rea in s.348(1)(a) but not in s.348(1)(b). This interpretation makes sense because if the two presumptions also applied to a s.348(1)(b) offence, it would make the offence a specific intent offence, which it is not.21 Therefore, R.B.’s intention for purposes of both counts is to be assessed while he was inside the room, not before he entered the room. That said, if there is evidence of his intention prior to entering the room, it may be probative of his intent while in the room, but it is not necessary as a matter of discharging the Crown’s burden. Since both offences are crimes of general intent, R.B.’s intent is to be inferred from all the circumstances.
C. Included Offences
27The court also invited submissions on what offences, if any, are included in the charged offences. Ms. Manitius argued R.B. had no intention to “break” into M.H.’s room but even if the court finds he committed the prohibited act as it’s a general intent offence, the Crown has not proven he committed a sexual assault which precludes a conviction on count 1. In other words, she argues if the Crown fails to prove both the predicate offence of break and enter and the secondary offence of sexual assault, the court cannot enter a conviction for any included offence. To put it differently, on count 1, the court could not enter a conviction for simply a break and enter offence if a sexual assault is not also proven. Count 2 is different because it only contains a single count. Ms. Manitius argues if the offences on count 1 were charged separately, the offence of trespassing under the Provincial Offences Act would also be a viable included offence to break and enter. Similarly, it would appear the offence in s.348(1)(a) is an included offence to s.348(1)(b) and using the same logic, the offence of unlawfully in a dwelling house in s.349(1) is also an included offence.22 With respect to sexual assault, both counsel submit a common assault is an included offence.
28It is my view that the success of count 1 does not involve an all or nothing proposition. In other words, it would be open to the Crown to establish proof of a break and enter without also proving a sexual assault and instead proving a common assault because it is an included offence. This interpretation makes sense in s.348(1)(b) because the Crown could not know be expected to know what R.B.’s intent would be upon entering the room. If that were the case, he would have been charged under s.348(1)(a) which has a higher fault requirement. The Criminal Code envisions both kinds of scenarios. Therefore, if the evidence establishes R.B. broke into M.H.’s room and applied force to her without her consent, it would prove the offence of break and enter and commit the indictable offence of assault, not sexual assault. The information does not particularize a specific sexual act. Nor did the defence seek particulars. Indeed, this appears to be the position taken by R.B. as to what he did because he admitted applying force to her body with toilet paper. He disavowed any sexual purpose which as I will explain I have rejected. I will now turn to the evidence.
III. The Factual Background
29Most of the factual circumstances leading up to what allegedly happened between R.B. and M.H. inside the room are not in dispute. These facts were gleaned mostly from the testimony of the witnesses as supported by the video footage. The area which is subject to a credibility evaluation is what allegedly occurred inside the room.
A. The Background
30M.H. is 29 years old and is employed as a personal support worker in a long-term care home. She is completing a Nursing program. She testified by videoconference and presented as a sincere witness. She was embarrassed by her conduct and wasn’t shy in telling the court that she was, in her words “shit-faced” drunk on the night in question and didn’t recall much if anything.
31R.B. is 55 years old. He testified by videoconference and was cross-examined by the Crown. He was responsive and not combative. When he did not understand a question, he asked for clarification suggesting he was paying close attention and not simply guessing. By way of background, he is employed as a chef in a restaurant. He has a criminal record with a conviction for a drinking and driving offence in 2012. While a court can take a criminal record into account in assessing credibility, it is my view this conviction is remote and has little to no bearing on my credibility evaluation.
B. The Parties
32The parties are known to each other as former co-workers at the hotel. They were never romantically involved. R.B. said he never had any feelings of any variety towards M.H. Indeed, he testified M.H. didn’t even have his cell phone number. Nor did he have her contact information. I accept this evidence which is supported by M.H. Again, consent is not a live issue in this case even though M.H. provided some predictive type evidence that she “would not” have consented to a sexual act with R.B. If consent were a live issue in this case, I would have to evaluate this evidence more carefully because it’s circumstantial evidence of non-consent.
33On December 15, 2018, both parties attended a Christmas party hosted by their employer, Hilton Garden Inn in Ajax (“the hotel”). At the time of the alleged offences, M.H. had been intermittently employed with the hotel for 3 years as a server/bartender. She stopped working at the hotel in October 2018 but returned as an invited guest for the party which was a dinner/dance event.
34R.B. was employed by the hotel as a maintenance manager. He is no longer employed in this capacity. His duties required him to maintain the hotel rooms which included taking care of the plumbing, electricity and hotel rooms. He acknowledged his former employment required him to supervise people and he was in a position of authority. As part of his employment, he was assigned a grand master key (#15) and an emergency key (#3) and said he only used it while on duty.23 R.B. said he knew the hotel was videotaped and knew where the cameras were located, including being aware there was a camera outside room 116 which was originally his room but later became M.H.’s room. He also knew the locks were controlled electronically and their use was reduced to a report, such as Exhibit 3: Interrogation Report. Ms. Manitius argues this is some evidence supporting her client’s state of mind that he would not have committed a sexual act knowing it would be easy to get caught. Respectfully, I will explain why this is not probative of what happened inside the room which I heard does not contain cameras for obvious privacy reasons.
C. The Party
35R.B. testified he was invited as a guest to the party which was on a Friday night. The event included alcohol and a bar was set up outside the ballroom. While the hotel was supplying the alcohol, he also brought some of his own. Earlier in the day he had learned from his general manager, J.C., there was an issue on the 5th floor of the hotel and he would have to work on Saturday, so he packed an overnight bag intending to stay overnight and report for work the following day. This was confirmed by J.C.
36R.B. said he arrived at the hotel around 5:30 pm. As a maintenance manager, he was provided a complimentary room for the night and assigned room 116 which is on the first floor near an exit to the parking lot. He attended in the room and dropped off his personal effects and got ready for the party. He stated it was his “common practice” to lay out his clothes for the following day, so he placed his jeans and the rest of his clothes, including his boxers on the bed. In cross-examination, he was challenged on why he would also lay out his undergarments (boxers) and said it was his habit. He maintained the boxers were laid out together with his clothes but when he was later rushed out of the room, the boxers must have separated from the clothes, resulting in them being left behind. The Crown argues his evidence of the boxers is not credible and defies common sense.
37At around 6-6:15 pm, he attended the party. He wore a navy three-piece suit. He acknowledged seeing M.H. but did not spend any time alone with her as she was “just a co-worker” like the others. Their paths would cross only once towards the end of the evening when she joined him and the bar manager A.A. for a shot of vodka when the bar was closing. During the evening, he returned to his hotel room alone on a couple of occasions to drink his personal alcohol, use the bathroom and go out for a smoke, as the room was near the parking lot exit.
38M.H. testified she arrived at the party around 7-7:30 pm. She was wearing a knee length burgundy dress with a long black blazer that extended below her knees. This was confirmed by the video footage. She was also wearing spanx, which is an undergarment worn under a dress, and can also double as underwear. She did not have separate underwear under the spanx. M.H. said she planned to drink alcohol at the party and there was no plan to stay overnight. Instead, she planned to take an Uber taxi home at the end of the night as she lived 5 minutes away.
D. Alcohol Consumption
39Both M.H. and R.B. consumed alcohol at the party. R.B. said he was mainly drinking vodka and had 8-9 drinks in total and some shots of alcohol, some of which he drank in his room. Exhibit 4 is video footage of the hallway immediately outside room 116, it appears R.B. was somewhat tipsy towards the end of the evening. In cross-examination he denied drinking a “fair amount” of alcohol but later admitted he was “quite intoxicated”. He explained he had control of his movements and unlike M.H., he did not appear obviously intoxicated. R.B. was walking straight and appeared to have good dexterity. He admitted knowing M.H. was drunk because of her falling down at the bar.
40M.H. testified she consumed “a lot” of alcohol which she described included red wine and liquor including vodka and whiskey. In total, she had about 10 alcoholic drinks, “if not more”. She explained the bar closed around 10:30-11pm and she drank continuously upon arriving. Towards the end of the evening, she recalled taking a final shot of vodka with the bar manager, A.A. as he was preparing to store the liquor away. This was her last real memory of the evening.
E. Account of A.A.
41A.A. is 34 years old and has been employed at the hotel for 7-8 years as the food and beverage manager. He is currently employed as a director. A.A. attended the party both as a guest and employee. His shift ended at 12:45 – 1:00 am. He testified he “probably” had a shot of alcohol but nothing else. He added towards the end of the night, he saw M.H. and R.B. talking at the bar when she lunged and fell down. This confirms the account of R.B. He intervened and sat her down and said she didn’t have to go home, and the hotel would provide her a room. According to him, R.B. offered his room and said he would go crash somewhere else. R.B. disputes offering his room and instead says A.A. asked who had a room on the first floor and he offered up his room and said he would go home or sleep elsewhere. A.A. said he grabbed her winter jacket and a center piece and he and R.B. helped her to R.B.’s room. This evidence is consistent with the account of R.B. and is supported by the video footage.
42R.B. testified towards the end of the party he began to interact with M.H. while he was at the bar with A.A. M.H. joined them at the bar and had one or two shots of vodka and fell to the ground. A.A. asked him if anybody had a room on the ground floor and he responded he did. R.B. explained when M.H. fell down, her cellphone ended up on the floor, so he picked it up and put in his coat pocket. The two men took M.H. to room 116 and put her on the bed and left. M.H., who was asleep. The video footage shows the two men propping up a very drunk M.H. on their shoulders and taking her to room 116 at approximately 12:11 a.m. R.B. is wearing a blue three-piece suit, which confirms his account of having a coat pocket.
43While in the room, R.B. and A.A. placed M.H. on the right side of the king-sized bed. A.A. told her to rest until she felt better and when she was ready, they would call an Uber taxi for her. M.H. said she had a “vague recollection” of being taken into a hotel room but could not recall who brought her into the room. R.B. testified at this point, nobody told him where he would be staying so he assumed room 116 was still his room. This appears to be confirmed by the account of A.A. who believed M.H.’s occupation of the room was a temporary thing.
44A.A. said both parties left the room leaving M.H. who was now laying down on the bed, still in her dress. He returned to the party and learned somebody found her purse which he recovered. At approximately 12:21 am, he and W.H. brought the purse back to the room and tried to enter but it was latched. Both parties knocked on the door but there was no response. He didn’t know if R.B. was in the room so he dialed his cellphone number and heard a ringtone from within the room, but nobody picked up. As a result, he returned to the front desk and left the purse. He had to return to his duties, so he told W.H. and S.H. to find R.B. and if he was in room 116, direct him to leave the room.
45A.A. returned to 116 and saw S.H. and W.H. help him take his belongings to S.H.’s room, which was now going to be R.B.’s room. He did not help with this. He directed W.H. to lock room 116. After the parties dispersed, he returned to 116 moments later to deliver the recovered purse. He entered the room and found M.H. sleeping on her back, face-up. She was snoring. He asked “M. are you okay” generating no response. Later, at about 1:04 am, he and W.H. retrieved two bottles of water and a bucket in case she vomited and left them in the room. He explained he wanted to check on her one final time before his shift ended. He noted she was still asleep. He told W.H. to lock the door again. He returned to the front dress and directed the desk manager, C.B. and W.H. to check up on her every 30 minutes to make sure she was okay. He also told them to make sure the room remained locked for her safety.
46A.A. testified he had access to a grand master key which gives him access to certain areas, but not an emergency key which allows one to open more areas. He explained one emergency key is usually kept with the maintenance manager. There are two more, one is kept at the front desk and the other is with the housekeeper manager. On this occasion he didn’t know if R.B. had his emergency key but of course, R.B. confirmed he did.
47In cross-examination, A.A.’s evidence about consuming alcohol varied from having “a shot” to having “half a shot” of vodka near the end of the night. He also disagreed he “rushed” along the process of R.B. collecting his items from room 116. He could not recall what R.B. took out of the room but after viewing the video footage, recalled some plates of food and some clothes. He was firm he didn’t remove any of his items.
G. Account of W.H.
48W.H. is 36 years old and at the time was employed as the front desk manager at the hotel. He reported to the general manager, J.C. On the night of the party, he was on duty as the front desk manager and therefore did not attend the party as a guest. His shift was to end at 1:00 am. He explained he knew both R.B. and M.H. as former hotel employees. He could not recall if he drank any alcohol.
49W.H. testified around 12:00 am, A.A. approached him for assistance in dropping off M.H.’s purse in room 116. He learned she was intoxicated and had to be helped to room 116 by A.A. and R.B. He hadn’t seen her or interacted with her during the evening. Ultimately, they were able to drop off the purse in room 116.
50At some point, he and S.H. were tasked to find R.B. by A.A. so they went to room 116 and began to knock on the door but nobody opened. W.H. explained a hotel room, which included room 116, has three different locking mechanisms. The first and most common is an electronic door lock which is accessed by a room key which is given to hotel guests. The second is a bolt, which is bolted from inside the room and can be overridden electronically with a master key, not a room key which is not provided to hotel guests. He explained a master key is provided to certain hotel employees which is catalogued in a Keycard Control Log (Exhibit 2). On this occasion, it would appear R.B. had grand master key #15 and because he was a maintenance manager, he was one of three people who also had an emergency key (#3). An emergency key allows one to override an electronic bolt and according to Exhibit 2, only J.C., the manager on duty (“MOD”) and R.B. would have had one. The final locking mechanism is a door latch which requires someone to manually latch the door from within the room which cannot be opened electronically. It is the most private form of locking mechanism. On this occasion, he used his grand master key to open the door but learned all three locking mechanisms had been activated. Ultimately, he had to retrieve his emergency key which he kept at the front desk to deactivate the bolt but learned the latch was on. As a result, he retrieved a screwdriver and tried to override the latch but couldn’t. Ultimately, they were able to open the door partially, but they heard nothing. They continued to knock on the door and eventually R.B. opened the door by unlatching the lock.
51W.H. explained S.H. spoke with R.B. and he learned he was in the washroom. He was still dressed in his suit which is confirmed by the video footage. They entered the room and S.H. and R.B. grabbed his personal effects and he checked on M.H. was asleep on the right side of her bed. There was “nothing too suspicious” going on. They assisted R.B. move his things upstairs to S.H.’s room. The video footage shows him and S.H. returning outside room 116 and having a conversation but he could not recall what they discussed. More importantly, W.H. said he locked room 116 by enabling the bolt mechanism. He explained only an emergency key and a master key would be able to override the locking mechanism.
52After leaving room 116, he returned to the room later on with A.A. to drop off water bottles and a bucket in case she vomited. As noted above, this was after A.A. tried to enter room 116 on his own using a room key but he wasn’t able to enter confirming the account of W.H. that he securely locked the door. This is also confirmed by the video footage. W.H. explained A.A. asked him for assistance as he wanted to drop off water, so he accompanied him to the room, and he used his emergency key to open the door. They entered the room and saw she was still asleep on her back. She didn’t interact with them. Importantly, he testified he didn’t see any of R.B.’s items in the room. He closed the door and made sure it was bolted, which again would limit access. Upon exiting room 116, he returned to the front desk area and filled out an incident report. He saw C.B. and updated him.
53In cross-examination, he was asked if he could interpret the Interrogation report and said he had limited knowledge of the contents. For example, he didn’t know what the term “Allowed to Open” meant on the report. W.H. was also asked if he and S.H. rushed R.B. out of the room and he said he wasn’t sure. He supposed it took less than a minute. He otherwise didn’t know what R.B. took out of the room as he wasn’t paying attention and “it was possible” some things were left behind and missed. He admitted the lights would have been turned off after he left the room. Finally, when asked about the position of M.H., he acknowledged he would have made sure she was on her side which is a safe position
G. Account of S.H.
54S.H. is 45 years old and at the time was employed as the executive chef at the hotel. He’s been employed for about 11 years at the hotel. He knew both parties as former co-workers. He did not interact with either outside of work. On the night in question, he attended the party as a guest. He joined the party at 9:30 pm and consumed alcohol. He testified he recalled seeing M.H. consume alcohol but did not recall her demeanor.
55At some point, he learned from A.A. that she had been taken to room 116 and they were unable to get into the room. A.A. suspected R.B. might be in the room which in his mind was a “red flag”. Ultimately, he confirmed W.H.’s account and R.B. opened the door which was latched. He entered the room and saw M.H. passed out on the bed and he offered his room. This account was confirmed by the video footage which shows S.H. with his arm around R.B. and the two are talking. He could not recall what they discussed but R.B. agreed to change rooms. He did not help him collect his things and didn’t know if he grabbed everything. He escorted R.B. to his room and left his room key and left. He returned to room 116 and W.H. was “locking out” the room with a master key. He understood this would prevent a guest from accessing the room with a guest key. He testified he had been assigned a master key which is confirmed by Exhibit 2 but not an emergency key.
56After joining the party, he was approached by C.B. who needed help. He explained he was in the lobby area but after cross-examination admitted telling the police he was in the restaurant. S.H. explained the lobby is part of the restaurant. I believe this explanation as it does not involve a material inconsistency. C.B. told him R.B. was having sex with M.H. and he explained he had no reason to disbelieve him. He and C.B. attended at room 116 and upon entering the room, he found R.B. hiding in a closet. He was fully clothed. M.H. was on the bed and laying on her back. She was passed out and her dress “looked okay”. It appeared it had not been touched as it was pulled down to her knees. Upon exiting the room, he recalled they had a conversation with R.B. in the hallway, but he could not recall what was discussed. He recalled R.B. expressing to him it was still his room. In cross-examination, it was put to him that R.B. returned to the room after their conversation and if he truly believed he sexually assaulted M.H., he would not have allowed him to enter. S.H. said he wasn’t sure if R.B. went back in but it’s not something he would have allowed even though he didn’t know for sure what happened inside the room.
57Finally, later in the evening, he helped J.C. retrieve M.H. who was found by hotel guests. They put her in a wheelchair and brought her back to room 116. This is confirmed by the video footage which shows M.H. bare feet and still wearing a dress. Prior to entering the room, S.H. testified he tried to take a selfie picture with M.H. in the wheelchair which on reflection was very poor judgment on his part. He couldn’t explain why he did this and is embarrassed looking back.
58In cross-examination, S.H. didn’t know if R.B. was rushed out of room 116 but he didn’t help him take things upstairs to his room. It was also put to him that C.B. was not sure about whether what he saw, namely, R.B. having sex with M.H. in the room. S.H. said he didn’t recall C.B. saying he wasn’t positive, which means he did not adopt this question. He had no reason to disbelieve him and wanted to see for himself. He acknowledged being upset after finding R.B. in the room but didn’t call the police or ambulance because wanted to relay the information to a supervisor so s/he could make the decision. S.H. admitted he tried to take a selfie photo with M.H. who was intoxicated in a wheelchair, and she rebuffed him. In hindsight, he admitted this was very unprofessional and he didn’t know why he did it. Finally, he denied speaking to his work colleagues about the case prior to testifying.
H. Account of C.B.
59C.B. is 29 years old and at the time was employed as the night auditor. W.H. was his direct manager and J.C. was his general manager. He testified he knew both R.B. and M.H. as former co-workers but didn’t interact with them outside of work. On the night in question, he was working his usual 11 pm to 7 am shift and did not attend for the full office party. He testified he came a little early around 10 pm and spent about 45 minutes at the party. He explained he didn’t consume any alcohol which was the subject of intense cross-examination by the defence because at one point he was seen holding a bottle of beer on the video footage which he explained he picked up from somewhere, intending to dispose it. The defence confronted him with a prior statement he gave to the police where he said … “I had a few uh” and it was put to him that he stopped himself because he was going to say he had a few (alcoholic) drinks but C.B. didn’t adopt the suggestion explaining his answer was a “few dishes of food” not alcohol. He maintained he never drank alcohol that night and has never drank while on the job.
60He testified he didn’t interact with M.H. or R.B. that evening. He recalled seeing M.H. who appeared “fine” as she was functional. However, around 12:10-12:15 am, he saw her being ‘half-carried’ to a hotel room by A.A. and R.B. After A.A. returned to the front desk, he learned M.H. would be staying in room 116 and R.B. would take S.H.’s room. He was tasked to check-up on her throughout the night to make sure she didn’t vomit. He agreed to check up on her every 30 minutes.
(i) Finding C.B. in room 116 with M.H.
61Around 1:30 am, he grabbed a master key from the front desk and proceeded to room 116. This is confirmed by the video footage. He knocked on the door and called out her name advising of his intention that he would enter the room but heard no response. He knocked on the door again and slightly opened the door, suggesting it was not latched, but still heard no response. He said he was at the door for about 30 seconds before entering. He explained he didn’t want to shock M.H. At this point, he slowly opened the door and saw a body on top of M.H. on the bed. Her legs were bare and spread out and he saw bare buttocks of a male with dark colored skin. He did not see the males’ penis. He didn’t notice if the person was clothed from the top up but was confident seeing bare buttocks. He saw the woman’s legs from up to her mid-thigh but couldn’t recall if she was clothed from the top up. He said the male’s body was moving up and down and slightly forward. He was in the room for about 2-3 seconds and quickly retreated out of the room worried he might have entered the wrong room. He didn’t notice the parties as there weren’t many identifiable features. In cross-examination, C.B. admitted providing a statement to the police on January 8, 2019 and acknowledging never telling them he saw the male moving up and down on top of the body. He said the police never asked and he didn’t think of adding this on his own. Likewise, he provided a statement to J.C. and also didn’t mention anything about the body of the male moving around. He admitted this memory came to him in the courtroom. In re-examination it was elicited C.B. did tell the police he saw “movement at first, and the movement freeze when I opened the door”. He further explained the call with J.C. was on the telephone after he was awaken from being asleep.
62C.B. explained the room lights were off and the blinds were closed, and while it was dark in the room, it wasn’t pitch black. He said there was a “good amount of light” coming into the room from windows from the parking lot and the opened door. He said there was enough light for him to see the bed, the carpet, and the edge of the TV. In cross-examination, he denied the room was pitch black that he couldn’t see what was in the room. He said M.H.’s legs were pointed towards the foot of the bed which confirms the account of others who said she was last seen on her back. He agreed he never let go of the door upon entering the room but added there is 8 feet from the edge of the door to the bed so he didn’t have to walk far into the room to make the observation which was to his immediate right. At the time, he didn’t know who the male was on top of M.H. because he didn’t see any facial features. C.B. said he was shocked and stood outside room 116 for a few seconds and didn’t know what to do. This is confirmed by the video footage. He decided he needed direction from a manager, so he saw S.H. in the hallway and didn’t attend at the kitchen to retrieve him. The two returned to room 116 with the emergency key. In cross-examination, C.B. denied telling S.H. he saw R.B. having sex with M.H. which conflicts with the account of S.H.
63C.B. and S.H. knocked on the door and there was no response. In cross-examination, it was put to him with the help of the video footage that he didn’t knock which he accepted although added he was positive he knocked at least once and S.H. knocked more. He heard a noise from inside but couldn’t make it out. He tried to use the master key to enter the door, but it wouldn’t work. He believed the room had been dead bolted from within. After a minute or so, he used his emergency key assigned to the MOD and was able to override the deadbolt. This too is confirmed by the video footage. Upon entering the room together, they saw M.H. laying on her back in the room. She was not awake and was unresponsive. S.H. used an ironing board to prop open the hotel room door. This is confirmed by the video footage. They proceeded to check the room by looking in the bathroom. He couldn’t recall seeing any personal belongings of anybody in the room. Ultimately, C.B. heard a noise coming from within the closet and alerted S.H. who opened the closet door and found R.B. hiding in the corner of the dark closet. He believed R.B. was fully clothed at the time. The parties exited the room leaving M.H. in the room, who was still passed out, on the bed.
64C.B. was vigorously challenged on his ability to make a reliable observation and what if anything he saw. He admitted being in the room for a “couple of seconds” and was “sure” he saw a naked man on top of a woman but unsure who was involved. Ms. Manitius put to him that he was unsure because if he did see a sexual assault, he would have reacted differently, such as stopping the assault and or calling the police, although he added he told S.H. they should call 911 and J.C. told him not to call the police. He admitted he did neither but explained he wasn’t frantic because he wanted to get advice from a manager as to how to proceed and wasn’t sure he walked into the right room. When pushed on his level of certainty, he said he was 100% sure about what he saw but not sure if it was the right room he entered and how he should proceed as it was not his decision. He disagreed with the core defence suggestion he was unsure about seeing a sexual assault.
(i) Voir Dire into R.B.’s first set of utterances
65C.B. testified upon exiting the room he and S.H. spoke with R.B. and confronted him about why he was in room 116. This generated some utterances which were the subject of a voir dire. C.B. testified R.B. was initially defensive about why he was in the room and accused them of having ulterior motives to enter room 116. He eventually answered he had been called into the room by M.H. on her cellphone and in summary, “to spend the night with him”. He could not recall any other details about the conversation. In cross-examination,
66R.B. denies making the above utterances which I have rejected as incredible and unreliable. I am satisfied there was an exchange by the parties because it is supported by the video footage which shows the parties speaking but what they discuss cannot be ascertained as there is no audio. R.B. is seen wearing jeans and a t-shirt and is bare foot. He appears animated and is gesturing with his hands to both parties. S.H. and C.B. are showing less animation.
67C.B. said S.H. determined he needed to advise their general manager J.C. and he ultimately contacted J.C. to attend at the hotel. After this exchange, S.H. and C.B. returned to the front desk and oddly, left R.B. who re-entered room 116. The video footage shows him re-entering the room for a few seconds and exiting. Ms. Manitius seized on this evidence to suggest C.B. was not sure about what he saw because if he truly walked in on a sexual assault, it is illogical he would permit R.B. to return to a crime scene. C.B. could not explain why he reacted this way but said the situation was out of his depth and required the intervention of a manager, J.C. He admitted letting R.B. back into the room with M.H. was a mistake but couldn’t explain why he did it, but denied it was because he was unsure about what happened.
(ii) R.B.’s second set of utterances
68C.B. also testified about a second set of utterances which the defence did not object to and which did not require a voir dire. He explained after J.C. arrived at the hotel, he was present when S.H. asked R.B. to see her cellphone. R.B. is alleged to have told them it died earlier in the evening. There is no evidence of an alleged phone call from M.H.’s phone to R.B. or a call history log, which would either support or undermine R.B.’s explanation. It is a gap in the record which must be assessed with the evidence as a whole. Later on, C.B. said he learned from other hotel guests they found a “naked girl”, passed out. This is not admissible for its truth but informs C.B.’s state of mind who testified he reviewed the video footage and learned M.H. had been found in this state by guests on the third or fourth floor of the hotel. In the end, S.H. and J.C. found M.H. who was helped in a wheelchair and taken to room 116 where she stayed for the night. At around 4:30 am he checked up on her and she was on her side and was unconscious on the bed. He couldn’t recall touching her. He couldn’t recall noticing anything on the floor around her as he was more focused on checking on her, not the room.
(iii) C.B.’s contact with M.H. after the event
69After the event in question, C.B. had a text conversation on two occasions with M.H. who he said asked for a summary about what happened. He could not recall telling her R.B. was found naked in a closet. He recalled telling her a dark- skinned male was naked on top of her and they found R.B. hiding in a closet. He didn’t recall telling her he had to pull down her dress to cover her.
(iv) Alleged motive to fabricate/bias
70C.B. was cross-examined by the defence to suggest he bore ill feelings or animus towards R.B. who had previously rebuffed his romantic advances. He disagreed stating he had no relationship with him, and it was neither good nor bad. C.B. denied the further suggestion he exaggerated his evidence of seeing a bare bottomed male on top of M.H. and blaming R.B. as the culprit, because of this reason. He denied telling S.H. “I saw R. having sex with M.”
71For reasons I will explain below, I found C.B. to be credible in his evidence about seeing the bare buttocks of a male on top of M.H. but have a reasonable doubt about the reliability of his evidence of seeing the bare bottomed male moving his body up and down, indicative of sexual intercourse.
I. Account of J.C.
72J.C. is 57 years old and was employed as the general manager at the hotel at the time of the incident. He explained that the hotel was using a KABA system to secure hotel rooms which was a computerized system. The system generated three types of keys: (i) a guest key, (ii) a grand master key and (iii) an emergency key. A guest key is given to a guest upon check-in. It is computerized and only allows access to the hotel room. If one is lost or not functioning, it can be re-programmed.
73A grand master is assigned to managers. It allows access to all hotel rooms and meeting rooms. This key cannot open double locked doors. In this case, a grand master key was programmed on September 10, 2018 and was assigned to all the managers including R.B. who had grand master key #15: Exhibit 2.
74An emergency key is given to limited people and this overrides all other keys. In this case, three parties had an emergency key which included himself, the manager on duty (MOD) which would have been W.H. prior to the end of his shift at 1am and C.B. thereafter and R.B. (#3). According to Exhibit 2, the emergency key was programmed on September 12, 2018, which was approximately 3 months before the office party and would have still been active on December 15th as it was set to expire on 09/10/2019 which wasn’t clarified in the evidence but I can reasonably conclude means either September 10th 2019 or October 9th, 2019. Either way, I’m satisfied the master keys assigned according to Exhibit 2 were functional, which aligns with the evidence.
75J.C. testified the use of all keys is captured in an Interrogation report (Exhibit 3). According to Exhibit 3, the following can be gleaned about room 116, which is material to this case:
12:27 a.m. – grand master key #3 assigned to W.H. used. Report notes: “allowed to open”
12:35 a.m. – grand master key #3 assigned to W.H. used. Report notes: “allowed to open”
12:38 a.m. – grand master key #8 assigned to A.A. used. Report notes “allowed to open”
12:41 a.m. – electronic lockout key #1 assigned to manager on duty (“MOD”) which I find would have been W.H. who was still on duty. There are no notes on this entry.
12:45 a.m. – grand master key #8 assigned to A.A. used. There are no notes on this entry.
12:46 a.m. – latch unlatch key #1 assigned to MOD which I find was W.H. who was still on duty. There are no notes on this entry.
12:46 a.m. – emergency key #1 assigned to manager J.C. The notes indicate “allowed to open”
1:16 a.m. – guest key #1 (key #116) used. I find this was R.B. using this key. There are no notes attached.
1:18 a.m. – grand master key #15 assigned to R.B. used. There are no notes attached.
1:18 a.m. – emergency key #2 assigned to MOD which I find was C.B. as he was on duty. The notes indicate “allowed to open”.
1:31 a.m. – electronic lockout key #1 assigned to MOD used, which I find was C.B. as he was on duty.
1:31 a.m. – grand master key #14 assigned to MOD which I find was C.B. was used.
1:31 a.m. – electronic lockout key #1 assigned to MOD which I find was C.B. was used.
76J.C. was not able to explain what the notes on the Interrogation report reveal but said the times that are captured including the keys and who they are assigned to, are to the best of his ability, accurate. As a result, he said the grand master key assigned to R.B. was current as of September 10, 2018 and the emergency key assigned to him was current as of September 12, 2018. Both were still assigned to him on December 15 and 16, 2018. For my purposes, the most important entries as gleaned from above are (i) the use of the latch unlatch key at 12:46 a.m. by W.H. which would have locked room 116 to prohibit access with a room key, (ii) the use of a room key at 1:16 a.m. by R.B. trying to enter room 116 with a room key but not entering as it could not override the latch/unlock function, (iii) the use of a grand master key at 1:18 a.m. by R.B. which permitted him entry overriding the latch/unlatch function and (iv) the use of the emergency key by C.B. at 1:18 a.m. which is after he found R.B. in the room and before he locked the door again near 1:31 a.m.
77As for other areas of his evidence, he admitted in cross-examination that M.H. recalled telling him when they spoke the following day words to the effect: “nothing happened” to her including a comment “I would know if anything happened to me, I’m okay”.
J. Account of R.B.
78R.B. provided a narrative of what happened after he and A.A. left M.H. in room 116. He was extensively cross-examined by the Crown on his account. In summary, he testified he re-entered room 116 on three occasions. The first and third occasions are not really in dispute, but the evidence diverges on the second occasion where C.B. claims he saw R.B. naked on top of M.H. I will provide a more detailed assessment of the evidence below, but for the moment, will summarize R.B.’s evidence for context.
i. The first entry into room 116
79R.B. testified he went for a smoke after dropping off M.H. This is confirmed by the video footage which shows him exiting the building. After finishing his cigarette, he entered room 116 as he still had the room key. By this point, nobody had told him where he would be staying, and his personal effects were still in the room, so he believed it was still his room even though it was now being occupied by M.H. Accordingly, he entered room 116 to use the washroom. In cross-examination he was challenged by the Crown as to why he decided to use the washroom in 116 when he knew M.H. was passed out on the bed. He maintained he still thought it was his room. In hindsight, he admitted he could have used a public washroom in the hotel but never thought of it at the time.
80In any event, upon entering the room, he put on the door latch from within. He could not explain why he did this adding he probably wasn’t thinking at the time. In cross-examination, he reiterated: “I have no idea why I did that”. He acknowledged a latch would prevent others from entering the room. While using the washroom, he heard somebody trying to open the room door, but the latch was still on. This confirms the account of S.H. and W.H. who were trying to gain entry. He finished using the washroom and unlocked the latch and opened the door. He was met with W.H. and S.H. In cross-examination, R.B. admitted he was told by both that it wasn’t a good idea that he was in the room alone with M.H. Indeed, he admitted knowing himself it was a bad idea and he didn’t have permission by her to enter the room as she was asleep. He knew she was in a “really bad state” because she was intoxicated, and he helped carry her into the room.
81R.B. testified S.H. advised him that he could take his (S.H.’s) room on the second floor of the hotel. He agreed. When cross-examined on this issue, he testified he knew at the time this meant room 116 was no longer his room and room 201 would be his new room. More to the point, he admitted knowing he was not allowed to be in room 116 after he left because it was no longer his room. R.B. said he quickly gathered his belongings while M.H. remained asleep on the bed. In cross-examination, he maintained he was rushed him out of the room and he inadvertently left his toiletries in the washroom and his car keys on the ledge. When asked if S.H. was yelling at him, he could not recall. There is some dispute about whether he was rushed out or not, which I will review in more detail below.
82R.B. testified he went upstairs and settled into his new room: 201. This too is confirmed by the video footage which shows him, W.H. and S.H. with his belongings which included plates of food, walking upstairs through the staircase. R.B. is still in his suit and appears to have good command of his faculties. R.B. said he did not return to the party which ended around midnight. He put on a pair of jeans and a t-shirt and began to watch TV. While changing, he realized he had M.H.’s cell phone in his coat pocket and also realized he left some of his items in room 116 when he was rushed out.
ii. The second entry to room 116
83R.B. testified upon realizing he needed his personal effects, he returned to room 116. The Crown says he did so because he was intent on taking advantage of a drunk M.H. which I will review below. R.B. denies this was his purpose. R.B. said he tried to use his old room key to open the door, but it didn’t work which he admitted meant the key was deactivated and it was a “sign” he was not be in that room. However, and despite this, he went upstairs to room 201 and retrieved either a grand master key or emergency key knowing it would override the lock and open room 116. He returned to room 116 and was able to use one of the two keys to enter the room. In my view, there can be no dispute that this is conclusive proof of breaking and entering into room 116 because R.B. admitted he knew he wasn’t allowed to be in the room. Moreover, he had no permission from M.H. or the hotel. The mens rea is easily made out because he made a conscious decision to enter.
84While inside room 116, M.H. was still asleep on the bed. He grabbed his razor and toothbrush that were in the bathroom and put both in his jeans’ pockets. The video footage shows him wearing jeans which are grey in colour. The toiletries are not visible in so far as sticking out of the pockets and it’s not obvious if the jeans even have pockets. The jeans appear to be tight-fitted and are not visibly baggy. It was put to him that the video footage shows his left hand in the pocket which would not be possible on his evidence if the items were in the pocket. He ultimately said he wasn’t sure which pockets the items were in.
85R.B. said he attended at the side table and placed M.H.’s cellphone on the table. In cross-examination, R.B. admitted he could have waited in the morning to retrieve his personal effects as there was no immediate need for them as he was staying overnight. Further, he admitted providing a statement to the police on February 11, 2019 wherein he told them about the razor and keys but did not retrieving a toothbrush as well. He explained he might have forgotten about the toothbrush.
86R.B. explained after grabbing his things and leaving the cellphone, he was on his way out of the room, with M.H. still asleep on the bed when he heard M.H. begin to urinate. The issue of how he would hear urine being expelled from the body was not explored by either counsel. He explained he ran to the washroom and grabbed some toilet paper and “tried to put it under her”. He wasn’t thinking at the time but “just to help somebody”. He placed the toilet paper near the middle area of her lower body and “pushed the toilet paper and left it there”. While doing this, he heard somebody open the door and it was quickly shut. He did not see who opened the door or anybody enter the room. C.B. testified he entered the room and saw R.B.’s bare buttocks on top of M.H. which of course R.B. denies.
87As might be expected, the Crown vigorously tested this explanation, which the Crown later argued was illogical. R.B. said he admitted M.H. was not a close friend but he still decided to help her by taking toilet paper and placing it in the center of her body “close” to her vagina. He admitted touching the bottom portion of her body to push the toilet paper in the area of the urine but denied touching her inappropriately or with a sexual intent.
88R.B. testified he thought somebody had entered the room and saw him “doing this” so he quickly ran to the door and locked it with a bolt and went back to M.H. and removed all the toilet paper and flushed it down the toilet. In cross-examination the Crown asked if he was concerned about somebody walking in why he didn’t lock the door before he began to clean M.H.’s urine. He explained: “I didn’t realize anybody could come in”. M.H. was still asleep and didn’t wake up. He maintained there was “a bit” of light in the room from the bathroom and he was able to clean her with toilet paper because he knew the layout of the room. It was put to him that on his account the bathroom light would also be on when C.B. entered but he said: “not at that time”.
89While in the washroom, he heard banging on the door. He peeked out the door and saw C.B. and S.H. standing outside the door in the hallway. They appeared to be talking but not upset. He didn’t open the door. He heard another bang and testified he became afraid and was not thinking straight so he unbolted the lock without opening the door and opened the closet door and hid inside the closet. He explained he was afraid of S.H. because he knew him to get mad. He also wasn’t thinking straight because he had been drinking alcohol. He admitted he didn’t want to be found by them.
90R.B. said while in the closet, he heard the front door open, so he remained in the closet. He saw S.H. open the closet door and take out the ironing board. S.H. returned to the closet and found him. He directed him to exit the room. While outside, he had a conversation with S.H. and C.B. which elicited some utterances, which are the subject of the voir dire. In short, he denied making the specific utterances attributed to him by C.B.
iii. The third entry into room 116
91R.B. testified after his confrontation with S.H. and C.B., he returned to room 116 for a few seconds, but then left. He could not explain why he reentered the room. This is also bizarre because M.H. was still in the room and arguably in the same state. The defence argues the hotel employees permitted R.B. to re-enter the room on this occasion because they knew nobody was sexually assaulted because if she had been, common sense dictates he would have never been allowed in.
92R.B. was also cross-examined on his relationship with C.B. In cross-examination he said the source for his belief that C.B. was upset with him related to an incident years ago when C.B. was working in the food and beverage department and brought breakfast to R.B.’s hotel room even though he had been told he didn’t have to. He had heard rumors from hotel employees that C.B. was gay and his overture with breakfast on this occasion was a “romantic advance” which he rebuffed. For reasons I will explain, I find this alleged motive to fabricate is no motive at all.
K. R.B.’s denials
93R.B. acknowledged touching M.H. to clean her with toilet paper, but otherwise denied being naked at any point with her while the two were in the room. He denied removing her spanx, adjusting her dress or getting on top of her while naked. He knew boxers were found in her room but said he wasn’t sure if they were his boxers or not.
94R.B. was cross-examined on his statement he gave to the police. The statement was not tendered by the Crown but the defence acknowledged it was voluntary without a formal voir dire. He explained he didn’t give a “full statement” to the police because he didn’t talk about the urine explanation because he was embarrassed.
L. The Morning After
95M.H.’s next memory of the events included waking up in the hotel room in the morning. She was alone and realized the bed sheet was wet suggesting she had urinated in bed. She was wearing her dress but not her spanx which had been removed. She could not recall how her spanx were removed. Her jacket and purse were next to the bed and she didn’t know how they got there.
96Further, M.H. testified she found a pair of grey and green boxers on the floor near the bed. She didn’t know who the boxers belonged to and left them in the room. The evidence establishes the boxers belonged to R.B. who offered a possible explanation as to why they were in the room, namely, he must have forgotten to take them when he was hastily rushed out of the room by S.H. and W.H. M.H. said upon waking up, she still “felt really drunk” and called an Uber taxi and went home.
97M.H. added she would not have invited R.B. into her hotel room but of course, didn’t even have a memory of knowing R.B. was in the room. She could not say if she was sexually assaulted.
M. The Aftermath
98Upon arriving home, M.H. said she was vomiting all day and night. She stayed in bed as she was really hung over. This speaks to her level of intoxication. She received a text message from her manager, J.C. explaining he wanted to talk to her. She didn’t know why J.C. was contacting her but suspected it might be because she drank too much alcohol at the party.
99On December 17th, she was driving to Windsor to visit a friend and learned from J.C. that R.B. had been in hotel room with her. She testified she had no recollection of anything occurring (or not) with R.B. M.H. said she was utterly confused and spoke with a friend B. who had also attended at the party but didn’t learn anything from her. She then spoke with C.B. by text message and learned that something had happened and “it wasn’t good”. Ms. Manitius did not object to the reception of this evidence for a non-hearsay purpose which included C.B. telling her he found R.B. on top of her naked and ran out of the room. Further, he also told her he found him hiding in the closet. M.H. spoke with others and ultimately decided to attend a police station to make a formal complaint.
100Finally, after learning the above, M.H. sent a message using the Facebook messenger application to Mr. B with a note: Did something happen on Saturday? (Exhibit 1) R.B. did not respond to this message.
IV. Findings and Analysis
A. The Legal Principles
(i) Reasonable Doubt
101In deciding whether the Crown has met its heavy burden of proof, I have to make some findings of fact about some contested areas in the evidence. This exercise must be done in the context of the presumption of innocence which means R.B. started the trial with a clean slate as an innocent party. He remains innocent until the Crown proves his guilt beyond a reasonable doubt.
102Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty that it does to a balance of probabilities
(ii) Credibility Assessments
103The legal framework for assessing credibility is well established. In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court set out a three-part test as follows:
(i) First, if you believe the evidence of the accused, obviously you must acquit.
(ii) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
(iii) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
104The W. (D.) methodology is an analytical framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests.24 There was no onus on R.B. to prove his innocence by testifying. The framework applies to defence evidence, but also to exculpatory evidence that is found within the Crown's case.
105A court is entitled to accept some, all or none of a witness's testimony.25 The evidence of a witness includes the answer to a question, not the question posed by the examiner. However, a court is entitled to reject an answer of a witness as untrue if not adopted, considering the evidence as a whole. Moreover, a trier of fact must scrutinize the witness' evidence using a common-sense approach that is not tainted by myth, stereotype or assumption.26 This issue can arise in a sexual assault prosecution and is premised on discriminatory logic which expects sexual assault complainants to act in a certain way consistent with “common-sense”. The argument follows if the complainant did not act as might be expected, their account is less credible. A common example is a complainant’s hue and cry, which has been debunked by courts in Canada and has no place in a sexual assault trial. Here, this issue is more nuanced because M.H. had no memory of being sexually assaulted so what she did or did not do is of little evidentiary value. The defence pursued this line of reasoning with the hotel employees to argue what they did or did not do after believing she was sexually assaulted was not credible because it defied common-sense. Ms. Manitius did not rely on myths or stereotypes about sexual assault victims but did rely on some assumptions about human conduct. I have carefully reviewed this submission and in my view, it did not cross the proverbial line because the attack was focused on challenging the reliability of C.B.’s observation. Ms. Manitius argued C.B. didn’t certain steps that one might be expected to take after witnessing a sexual assault, such as stopping the assault or calling the police. She argued C.B. failed to take these steps because he was unsure about what he thought he saw. This line of reasoning is premised on the assumption of what a person might be expected to do if witnessing a sexual assault and to that extent isn’t useful to my consideration but given the nuance, its relevance as post-even demeanor can be useful. Cases have held that a sexual assault complainant’s post-event demeanor can be used to evaluate the credibility. Further, the law also permits a court to evaluate credibility assessments based on assumptions about human conduct where the assessment is based on evidence about what a particular person would do in the specific circumstances of each case.27 I will review the defence submission with respect to the evidence of the hotel employees within this lens.
106There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness' evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favorable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying.
(iii) Demeanor and Reliability
107A court can also evaluate credibility based on the impression of a witness. One’s demeanor while testifying can assist in evaluating credibility but it must not be given prominence in resolving a credibility dispute as it can easily be masked.28 I advert to these principles because it’s not lost on the court that the Crown’s central witness C.B. testified in the courtroom where I saw him live whereas R.B. opted to testify by video. It is my view there was no real disadvantage in doing so because I was able to see and hear R.B. with great ease.
108As noted above, post-event demeanour or emotional state evidence is admissible and may be used to support a complainant's evidence of a sexual assault.29 In this case, this principle has limited application to the evidence of M.H. because she had little to no memory of the events including whether she was sexually assaulted. She took steps after the fact to determine if in fact she was sexually assaulted. I am not permitted to use these steps as enhancing her credibility which I have not. This principle applies differently in this case as the defence argued her post-event demeanor was inconsistent with a sexual assault as alleged by C.B. and C.B.’s post-event demeanor was also inconsistent with a person who had just been sexually assaulted. I will review both submissions below.
109The law creates a distinction between credibility and reliability. Credibility relates to the honesty of the witness' testimony. Reliability relates to the accuracy of the witness' testimony which engages a consideration of the witness' ability to accurately observe, recall and recount an event.30 At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. A witness whose evidence about some factual matter is not credible cannot be relied on to establish that fact. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence.31 This principle has application in this case because some witnesses admitted consuming alcohol, including R.B. The defence argues C.B. also consumed alcohol which would impact his to make reliable observations, something he denied.
(iv) Circumstantial Evidence
110Finally, in addition to the direct testimony of witnesses, a court can also consider circumstantial evidence and inferences that flow therein. The parties invited the court to draw reasonable inferences from the video footage which depicts the parties and M.H. who professed to have little or no memory of the events because of alcohol consumption. The principles involving circumstantial evidence were summarized by the Court of Appeal in R. v. Lights, infra 32 at paras. 36-39. The law provides that inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience.33 These principles have application in this case because the Crown invites me to consider evidence of after-the-fact or post-incident conduct of R.B. when he was found hiding in the closet of M.H.’s room when C.B. and S.H. entered. The relevance of this kind of evidence is a case by case, fact driven exercise. In some cases, this kind of evidence may be relevant to the issue of intent, whereas in other cases, the “evidence may have a veneer of cogency disproportionate to its true probative value. It may spur speculation, spawn imprecise reasoning and encourage decision makers, such as an untutored jury, to jump to dubious conclusions.34 I have been careful in evaluating this principle to determine what inferences I can draw from R.B. hiding in the closet. Was it because he knew he broke into the room or because he committed a sexual assault? Or was it because of something else unrelated to the criminal allegations including no reason at all? With the legal principles in mind, I will now turn to the first step in the W. (D) framework.
B. Application
(i) Overview
111R.B. testified by videoconference. He provided his account in chief and was cross-examined by the Crown. In my view, nothing was lost in the credibility evaluation from afar as opposed to being in the courtroom. R.B. presented with a calm demeanor and wasn’t evasive or combative. In some areas of his evidence, he admitted his faults and explained them. For example, he provided explanations as to why he hid in the closet and why he didn’t tell the police certain details in his statement which the Crown argues are material omissions from his account. The defence had admitted his statement to the police was voluntary and didn’t require a formal voir dire but did not seek to tender it as evidence. Overall, there isn’t much controversy in his account except on the core issue of whether he committed a sexual assault as alleged by the prosecution which includes being naked and on top of M.H. after entering the room on the second occasion. R.B. provided an explanation about why he touched M.H. but said it involved his efforts to clean M.H.’s urine. For reasons that I will develop below, on the first step of the W. (D.) test, I have accepted some of R.B.’s evidence, but not all of it. The acceptance of his evidence in some areas leads me to conclude he intentionally broke and entered room 116 and applied force to M.H. which makes out the elements of a break and enter and assault. However, I have rejected his explanation as to why he was in the room which included his efforts to clean M.H.’s urine. I have also rejected his denial that he was not naked and was not on top of her. I have a reasonable doubt that he was moving up and down on while on top of her. On the whole of the evidence, the evidence proves his guilt on both counts.
(ii) R.B.’s utterances to C.B.
112Before I turn to my assessment of the evidence, I will first pause to explain why I found R.B.’s utterances to C.B. and S.H. outside room 116 after being found hiding in the closet are admissible. This forms one of the many reasons as to why I rejected his evidence as untrue. The defence objected to their admissibility as hearsay and lacking probative value. The Crown argues they are admissions against interest and should be received as not being too prejudicial.
113I agree with the Crown on both points. First, I find as a fact R.B. told C.B. when confronted that M.H. invited him into the room to spend the night and used her cellphone to communicate this to him. I reject his denial that he did not say this to C.B. I found C.B. was credible on this point. In cross-examination he maintained he had a specific memory of being told this information by R.B. This account is confirmed to some degree by the video footage which shows the parties having an animated conversation outside room 116 even though there is no audio. C.B. was not drunk while R.B. had 8-9 alcoholic drinks, which would make him less reliable in his memory. For similar reasons, S.H. also drank alcohol and could not recall what if anything was said. His memory on this point would be equally fragile as R.B.’s. Further, C.B. had no motive to lie about what he heard because at that point he had no reason to disbelieve him. I have considered as well that C.B. did not appear to tell the police what R.B. said to him, but it does not detract from his credibility. As he explained, he was sure about what he saw but unsure what to do about it. This makes eminent sense because apart from knowing M.H. was drunk and on the bed, it does not follow he would be expected to know if she did in fact invite R.B. into the room. There is no evidence that at the time R.B. explained himself, C.B. also knew it was a lie because he knew R.B. had her cellphone which he picked up after she fell down. That information might have been known to A.A. who helped take her into the room but there is nothing to suggest C.B. knew this as well and therefore would have had more reason to challenge the lie at that moment and because he didn’t, he must not have heard what he thought he heard.
114The fact that S.H. did not recall what was said does not mean nothing was said. This absence of evidence does not make C.B.’s recollection of what was said less credible. R.B.’s utterances to him are admissions against interest and therefore admissible. 35 Additionally, I find the probative value of the utterances is high because he was confronted by C.B. proximate to the time of the events and it may be relevant as well in assessing C.B.’s credibility which was attacked based on what he didn’t do. R.B. testified about the utterances and was cross-examined as was C.B. and S.H. Any issues about the quality of the evidence goes to weight not admissibility. I have kept in mind the limited use I can make of them including the prohibited purpose of his after-the-fact conduct. As I will explain later on, I do not agree with the Crown that this utterance is positive evidence which proves R.B. committed a sexual assault by having intercourse with M.H. It does, however, undermine his credibility because it is inconsistent with his trial testimony.
115I will now consider the three legal questions which the Crown must prove beyond a reasonable doubt to secure a conviction. I have kept in mind that the W. (D.) test applies to the elements of the offences and I will approach my task this way to consider if the Crown has proven his guilt on any offences that might be included to the charged offence.
(iii) Did R.B. intentionally ‘break” into room 116?
116Count 1 relates to proof of a break and enter. There is not much controversy about this element as R.B. admitted entering the locked hotel room. The controversy surrounds the next two elements of the offences which involve proof of an assault and sexual assault. If the Crown cannot prove R.B. broke and entered M.H.’s room and committed an offence, whether sexual or non-sexual, the analysis would end, and he would be acquitted. Applying the first two steps in W. (D.), R.B. by his own account admitted breaking into the hotel room on three occasions but only two of these entries was problematic. I will focus on the second entry but will consider all the evidence as it may be relevant in providing some evidence about his intention with respect to the reasons why he broke into the room.
117On December 15, 2018, R.B. was employed as a maintenance manager at the hotel and had access to a grand master key #15 and emergency key #3 as evidenced by Exhibit 2: Keycard Control Log. I find he still had both keys which were active as of this date which would permit him to enter room 116 even without a guest key. As a manager attending an office party, R.B. was assigned room 116 on a complimentary basis and was given a guest room key. There is no evidence he relinquished this key at any point. In other words, he was never asked by anybody to return the guest key after he switched rooms with S.H. I believe R.B. that he was scheduled to work at the hotel the following day and therefore would have brought his work clothes in an overnight bag. This would have included toiletries and other personal effects. I also have no reason to reject his account that it was his habit to lay out his clean clothes on the bed for the next morning. This is not an illogical thing to do.
118R.B. testified as part of his habit he would have also laid out his boxer shorts on the bed. Ultimately, M.H. testified a pair of grey and green boxers were found on the floor in room 116 next to the bed and she didn’t know who they belonged to. R.B. testified he didn’t know for sure if the boxers belonged to him because he never saw them again. In my view, while it is always possible that the person who occupied room 116 before R.B. might have left a pair of boxers behind, I suspect this would have been caught by the cleaning crew before a new hotel guest occupied the room. It is a large piece of clothing, not something like a small piece of jewelry a cleaner might miss. I find as a fact the grey and green boxers belonged to R.B. I am concerned by his lack of candour in admitting these were his briefs because I find he did so to create distance between them. R.B. testified he was rushed out of the hotel room and if they belonged to him, he must have left them behind. The Crown points to the boxers as circumstantial evidence of R.B. being naked in the room which supports the credibility of C.B.’s account of seeing R.B.’s buttocks. I agree with this submission. The value of the boxers ends there because they do not assist in proving a specific kind of sexual intercourse. There is no forensic value to them as they were never tested but I find they belong to R.B. and were in the hotel room when M.H. woke up in the morning.
119R.B. testified he consumed 8-9 alcoholic drinks which also included shots of vodka in his room. He admitted he was “quite intoxicated”. I have observed the video footage and it shows R.B. being somewhat tipsy. He is not overtly intoxicated like M.H. who had to be helped to room 116 by R.B. and A.A. She used the phrase “shit-faced” which I know to mean heavily intoxicated. I accept she was obviously intoxicated, and this was well known to R.B. He would have known she was drunk and out of it. She passed out in room 116. I accept the evidence of W.H., C.B. and A.A., she was asleep when they checked up on her. They were worried about her vomiting in her sleep which is indicative of her level of impairment. It is commonly understood that alcohol consumption impairs one’s ability to accurately recall an event. I must evaluate R.B.’s memory of events through this lens.
120R.B. testified he had no romantic interest in M.H. and was not aware of any reciprocal feelings by M.H. towards him. I believe him. M.H. testified she would not have consented to a sexual encounter with R.B. because they were co-workers and I accept this predictive evidence. Consent or mistaken belief in consent is not in issue in this case because R.B. says he never committed a sexual act. The Crown argues R.B. offered up his room when M.H. collapsed at the bar which is some evidence of his intention to want to take advantage of a drunk co-worker. I found A.A. to be less than reliable on this point who offered this evidence. I suspect his memory is clouded by his belief that M.H. was sexually assaulted. He admitted having a “half-shot” of alcohol which is bizarre because a shot is not much alcohol to begin with. He likely did so because he admitted he wasn’t allowed to drink on the job, and it was the hotels’ alcohol when he took the shot. This is a minor point because not much turns on his credibility. Rather, I find it is more likely that he asked if anybody had a room on the first floor and R.B. truthfully said he did. I do not find he offered up his room to M.H. because his plan was to stay overnight to work the next day and he drank a lot of alcohol. Quite frankly, I find it surprising that the hotel didn’t simply assign M.H. her own room which would have been the more prudent thing to do.
121There is no controversy that R.B. and A.A. carried a very drunk M.H. into room 116 and put her on the king size bed. I find she was still clothed at the time in her burgundy dress and black blazer. I accept R.B.’s personal items would still be in the room at that point and he still had his room key. R.B. said after having a cigarette, he entered room 116 to use the washroom. This entry is confirmed by the video footage. This was a poor decision on his part likely fueled by alcohol, but in my view, it is not proof of breaking and entering. At this point, nobody had told him room 116 no longer belonged to him and his personal items were in there. While it is highly unusual that he decided to latch the door upon entering, it would be speculative to infer this was for a nefarious purpose. Again, this poor decision might have been fueled by alcohol, but I simply don’t know for sure. I can safely conclude he was very drunk.
122The law provides that a mistake of fact may negate the mens rea for a break and enter offence. For example, in R. v. Gawel,36 the accused was highly intoxicated and mistakenly believed he was in own house when he assaulted the victim. The appellate court found this negated his mens rea. I find this reasoning would absolve R.B. of any liability on his first entry into room 116, but not the second or even third entry.
123R.B. testified after he used the washroom and opened the door to find W.H. and S.H. standing in the hall, he was rushed out of the room and told he would take S.H.’s room (201) and M.H. would stay in room 116. This too is confirmed by the video footage. R.B. said in the hasty move, he left behind some personal effects including toiletries and his keys. I have no reason to reject this evidence because the video footage establishes not a lot of time was taken to retrieve his items. It is perfectly sensible one would forget some items especially if one was drunk. The Crown challenged him on this evidence because he later admitted he didn’t need any of these items until the morning and could have waited but chose not to. He agreed he could have waited and didn’t, but hindsight is 20/20.
124S.H. and W.H. testified they could not recall if they helped R.B. remove his items from the room. The video footage fills this gap to some degree which shows R.B. carrying two plates of food but it’s unclear if he is also holding his boxers.
125R.B. testified after changing rooms, he knew he wasn’t allowed to be in room 116 anymore even though he still had a room key. After settling into room 201, he realized he forgot his toiletries and keys and tried to enter room 116 with a room key but it didn’t work. This is confirmed by Exhibit 3 which shows him attempting to gain entry at 1:16 a.m. using a room key. This would have been around an hour or so after M.H. was placed in room 116. He testified he knew the fact his room key didn’t work meant he wasn’t allowed into the room but instead took deliberate steps to retrieve his grand master key from his bag in an effort to gain entry into room 116. This is not only confirmed by the video footage but also Exhibit 3, which proves he gained entry at 1:18 am with his grand master key. As a manager, I find R.B. would have known the capabilities of his grand master key and knew it could override a locked door and allow him access to a locked room. He took steps to retrieve the right key knowing this. More importantly, I find R.B. knew room 116 was no longer his room and he no longer had permission to enter the room like he might have had with his first entry. There was no mistake of fact. He was clear in his evidence he knew he wasn’t allowed to enter and chose to enter anyways. This is clear evidence of his intent and proves he broke into room 116.
126The same reasoning would apply to his entry into room 116 on the third occasion, after he was confronted by C.B. and S.H. about why he was in the room with M.H. This evidence is less important to the Crown’s theory of liability which hinges on the second entry but more important to the defence theory because Ms. Manitius argues it is post-incident evidence that suggests he was allowed by them to enter room 116 on a third occasion because C.B. didn’t truly believe he was on top of M.H. (and moving around on her, suggesting the parties were having sex). It follows that if C.B. was confident in what he saw, he wouldn’t have allowed him to enter. I will review this argument below when I assess C.B.’s evidence but for my purposes on the break and enter count, I have also considered this evidence and whether it may be relevant post-incident evidence of R.B.’s state of mind. However, it clearly conflicts with his trial testimony that he knew he wasn’t allowed to be in the room. It does not elevate his evidence to a true mistake of fact on the second entry. Just because he might have left his toiletries behind, that doesn’t mean he was still permitted entry. He testified he knew it wasn’t his room anymore. I simply don’t know why he entered the room on the third occasion which again was a very poor decision. It has very little to do with C.B.’s credibility and reliability because for similar reasons as above, there is no “common-sense” evidence of what a hotel manager is expected to do in cases where one suspects sexual activity between co-workers. And, where one party has purportedly taken the position the activity might have been consensual because he was invited into the room. I do not accept the defence argument that it’s illogical for C.B. and S.H. to have permitted R.B. back in the room after finding him hiding in the room. Logic has little to do with what happened outside the room.
127I find R.B.’s entry into room 116 on the second occasion and third occasions clearly makes out the mens rea and actus reus of a break and enter offence contrary to the Criminal Code. I will focus on the second entry as that is when he is alleged to have committed the additional offence of sexual assault.
(iv) Did R.B. voluntarily “touch” M.H. resulting in an unlawful assault?
128The next question involves whether the Crown has proven beyond a reasonable doubt that R.B. committed a sexual assault on M.H. upon entering room 116 on the second occasion. To answer this question, I will first consider if the evidence proves he committed an assault as envisioned by s.265(1) of the Criminal Code. If an assault is not proven, it would preclude proof of a sexual assault and I would not have to consider the circumstances of the touching. This issue turns on a credibility and reliability evaluation of the conflicting evidence.
129As noted earlier in these reasons, s.265(1) of the Criminal Code does not require physical touching to constitute an assault. The act may be either a threat or an attempt and may be sexual or non-sexual. In R. v. Edgar,37 the Court of Appeal held at para. 10:
10 To commit a sexual assault, it was not necessary for the appellant to touch or even verbally threaten the complainant. A person's act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person's sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault. See Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(b) and (2); R. v. Cadden (1989), 1989 CanLII 2847 (BC CA), 48 C.C.C. (3d) 122 (B.C.C.A.); and R. v. Johnson, 2006 CanLII 37519 (Ont. S.C.).
130In most cases of sexual assault, the assault component is rarely in dispute because the complainant offers evidence about being sexually touched. The issues usually turn on credibility if the act is denied, or when it is not denied, issues of consent. However, in this case, it is not so easy because M.H. has no recollection of having any force applied to her in a sexual manner. The evidence of touching comes from C.B. who says R.B. was observed naked from the waist-down and on top of M.H. and going up and down on her body. Implicit in this account is sexual intercourse which is sexual touching. R.B.’s account involves entering room 116 on the second occasion and seeing M.H. asleep on the bed. He claims he did not touch her and placed her cellphone on the side table and grabbed his toiletries and keys and put them in his jean pockets. On his way out, he heard her urinate which prompted him to run to the washroom and retrieve toilet paper. In his words, he “tried to put it under her” and “pushed the toilet paper and left it there”. In cross-examination, he acknowledged he would have indirectly touched her body with toilet paper for this purpose but denied directly touching her vagina and maintained it was only for the purpose of helping her clean her urine. He said he flushed the soiled toilet paper down the toilet but before he could leave, somebody entered the room. He became scared and hid in the closet until being discovered by C.B. and S.H. He denied removing his pants and being naked from the waist down and denied being on top of M.H. and moving his body up and down. There is an obvious credibility conflict in the evidence which requires me to apply the W. (D.) framework to determine if the Crown has proved an assault before I get to consider a sexual assault.
i. The W. (D.) Framework
131In the first step of the W. (D.) framework, I must consider if there is any evidence which I accept which is inconsistent with R.B.’s guilt about any criminal offences not just the ones he is charged with including an assault. This includes R.B.’s evidence denying the conduct and any other evidence that supports his account which can arise from the Crown’s evidence or the circumstantial evidence, which may include the video footage. If I do not accept his evidence at the first step of W. (D.), but there is evidence that leaves me in doubt as to guilt, I must find R.B. not guilty even though the Crown has proven a break and enter offence. There must also be proof of an indictable offence which includes, at the very least, an assault.
132The second step in the W. (D.) framework is related. Where there is some uncertainty on vital issues at stage one, it could result in a doubt. In other words, if I was uncertain that R.B. committed an assault on M.H., it would end the analysis without resort to the third step in W. (D.). Caselaw has established that in considering the first two steps of the W. (D.) framework, the evidence of R.B. must be considered in the context of the evidence as a whole, including C.B.’s evidence. In other words, the assessment is not simply whether his evidence standing alone and without context is believed or leaves a reasonable doubt. 38 The second step in W. (D.) emphasizes that there is an alternative between complete acceptance and complete rejection of a defendant's evidence. 39
133The third and final step in the W. (D.) framework only arises if I completely reject R.B.’s evidence and it raises no doubt in my mind. This step emphasizes that the Crown bears the burden of proof and requires an assessment of the evidence as a whole to determine whether the offence(s) have been proven beyond a reasonable doubt. It is important to note that the rejection of any evidence at stage 1 and 2 of W. (D.), does not add weight to the Crown’s case at stage 3.
ii. The Positions of the Parties on W. (D.)
134The Crown advanced a primary theory of liability but embraced a secondary one after R.B. chose to testify. The law permits the Crown to advance more than one theory especially if one arises from the defence evidence. R.B. did not have to prove his innocence, but the Crown says as a result of his testimony, there are two paths to a conviction for a sexual assault. The Crown’s primary theory is R.B. broke into room 116 with the intention of committing a sexual act because he knew M.H. was drunk and vulnerable. His pre-incident and post-incident conduct is evidence of his state of mind which furthered this purpose. In other words, he would have known she was in a vulnerable state with his first entry, used the excuse of obtaining his toiletries from the room as a ruse for the second entry and was having sexual intercourse with her when C.B. walked in to the room. The Crown urges the court to accept the evidence of C.B. who testified he saw the bare buttocks of R.B. on top of M.H. and moving his body up and down simulating intercourse. The Crown says R.B.’s post-offence conduct involving hiding in the closet and lying to C.B. is circumstantial evidence of his intent to commit a sexual assault.
135The Crown’s alternative theory of liability arose from R.B.’s evidence. The Crown says R.B. admitting breaking into the room and if the court does not reject or is left in doubt about his toilet paper evidence, this easily proves an assault because he touched her body with toilet paper without her consent. However, this also proves a sexual assault because it was touching of an intimate area of the body. On either theory, there is proof beyond a reasonable doubt of a sexual assault accompanied with a break and enter offence.
136The defence concedes R.B. broke into room 116 but it was without sexual intent and without any intent to commit any criminal act. The defence urges the court to accept R.B.’s evidence that he was rushed out of the room, left his personal effects and entered the room to retrieve these items as well as to return M.H.’s cellphone. The court should accept the account that he did not remove his pants and was not on top of her but rather was helping her clean urine with toilet paper. If the court accepts this account or is left in doubt by it, there is no proof he intended to commit a sexual act. The defence submits at its highest, this evidence would prove an assault because of the indirect application of force to M.H.’s body with toilet paper.
(iii) Overview of W. (D.) Assessment
137There are two fundamental points of divergence in the evidence which have a bearing on the W. (D.) analysis. They include R.B.’s evidence involving the use of toilet paper to clean M.H.’s urine and C.B.’s evidence that he saw the bare buttocks of R.B. on top of M.H. going up and down. The clear inference from this evidence if believed is R.B.’s penis would have been exposed at the time and he might have been engaging in sexual intercourse.
138In light of the Crown’s heavy burden of proof, if I were to accept R.B.’s account on the first two branches of the W. (D.) framework, it is my view, an assault would easily be made out because he acknowledged indirectly touching M.H.’s body with toilet paper without her consent. This account would be proof of an assault because the act was done deliberately and was not a reflexive or defensive act which might negate the mens rea. On his version, he went to the washroom to obtain toilet paper and as he said: “tried to help her out”. I understood the defence submission to be if this is believed, it might prove an assault, but it would be important evidence of his state of mind in disproving a sexual act. I agree with this submission because an assault is a crime of general not specific intent. If this were the case, I would then be required to consider whether this admitted conduct was a sexual act. This too would require a W. (D.) analysis because it is a separate element of the offence. Again, if I were to believe R.B.’s account, including his touching of M.H. with toilet paper and that he was clothed, it is arguable whether this conduct would amount to a sexual assault in the eyes of the law. The Crown submits this would constitute an offensive act which is carnal in nature because M.H. was asleep and could not communicate consent. She would have been in a vulnerable position and a co-worker touching intimate parts of her body even with the purpose of cleaning urine is inherently a sexual act. The defence disagrees. The Crown says on R.B.’s evidence, a sexual assault is proven.
139For reasons that I will explain below, I do not have resolve the Crown’s latter theory of sexual assault which involves a full acceptance of R.B.’s account because I have serious problems with the credibility and reliability of his account. On the two fundamental points in dispute, I reject his evidence involving using toilet paper to clean M.H.’s urine and I reject his denial of not being naked from the waist down. Nor do I accept his denial that he wasn’t on top of M.H. while his penis was exposed. In light of my findings of fact after considering the evidence as a whole, I will explain why I have concluded the Crown has proven beyond a reasonable doubt that R.B. committed an assault on M.H. by act or gesture by choosing to place his body on top of M.H.’s body with his penis exposed in circumstances where M.H. could not consent. As I will go on to explain, for similar reasons, I am satisfied the Crown has proven this act constitutes a sexual assault in the eyes of the law but I am not satisfied this is proof of sexual intercourse on the Crown’s primary theory of liability.
140In light of my obligation to first consider R.B.’s evidence on the first two steps in W. (D.), it may be helpful to itemize my core findings on some vital areas that the Crown could not prove beyond a reasonable doubt on their primary theory of liability which was an argument that R.B. had sexual intercourse with M.H. who could not communicate consent. These findings arise from my assessment of R.B.’s evidence in context of the evidence as a whole. This also includes my assessment of the Crown’s evidence at the third step of W. (D.). These findings will provide helpful context to the discussion when I assess what the Crown’s evidence was capable of proving beyond a reasonable doubt and why I concluded this was sufficient to prove the offence of sexual assault. In summary, the Crown did not prove the following facts beyond a reasonable doubt:
(i) R.B. entered room 116 with the intention of committing a sexual act;
(ii) R.B. removed M.H.’s underwear (or spanx);
(iii) R.B. was on top of M.H. in circumstances where her vagina was exposed (although did prove R.B. was on top of M.H.);
(iv) R.B. was moving up and down and side to side on top of M.H. simulating sexual intercourse;
(v) R.B. penetrated M.H.’s vagina with his penis; and
(vi) R.B. hid in the closet and lied to C.B. because he knew he had been caught having sexual intercourse with M.H.
iv. Application of W. (D.) Framework
141I will now consider R.B.’s evidence on steps 1 and 2 of W. (D.). To review, Ms. Manitius argues I should accept his evidence about why he entered the room on the second occasion and also accept his evidence he wasn’t naked from the waist down, nor on top of M.H. when he tried to place toilet paper under her body to help clean up her urine. She submits R.B. never intended on touching her body for a sexual purpose and any touching would at best, make out an assault.
142Ms. Thompson argues R.B.’s evidence involving the toilet paper evidence was deliberately dishonest. She invites me to accept the evidence of C.B. who saw a half-naked R.B. on top of M.H. who was moving up and down on her body having sexual intercourse with her. The Crown says there are several problems in R.B.’s evidence which defy common sense, are unreliable because of his alcohol consumption, are inconsistent with the Crown’s witnesses, and are internally inconsistent. In particular, she urges the court to find his pre-incident conduct which involved locking the room on the first entry and post-incident conduct, which involved hiding in the closet and lying to C.B., support a strong inference that he intended to commit a sexual act on a vulnerable M.H.
143I agree with the Crown’s submissions, in part. I found R.B.’s evidence to be problematic in several areas. I reject his explanation as to why he applied indirect force to M.H. using toilet paper because she urinated in bed. I also reject his evidence he was clothed and was not on top of her. Even though R.B.’s evidence easily makes out a break and enter offence as explained above, I will review this evidence in greater detail in this area because it provides some necessary context to his position that he didn’t commit a sexual act. To simply focus on what happened in the room devoid of this context will be unfair to the positions of both parties. As a result, I will assess R.B.’s in this context and explain areas of his account I accepted and other areas where I was left in a state of uncertainty applying the second step of W. (D.).
144As an overview, R.B. presented as a calm and focused witness. As noted earlier, I did not have any problems with the technology and was able to hear and see him without any difficulty. Indeed, my credibility evaluation was made a bit easier because I had a screenshot view of every question and response. I deliberately slowed down the proceedings to make sure his technology didn’t fail by ensuring he was able to see the video footage when it was played for him using the screen share function on the Zoom platform. I was able to assess his demeanor without problem. R.B. answered each question carefully and was not evasive in his answers. The problem as I will explain relates to the content of his evidence.
145First, I cannot be sure R.B. formed an intention to commit a sexual act on M.H. prior to entering room 116. I rely on the following pieces of evidence. I accept he did not offer up his room to have M.H. stay in it when A.A. asked who had a room on the first floor. While R.B. was arguably intoxicated by alcohol and the reliability of his memory would be called into question, A.A. was not entirely sure about this utterance which leaves me with a doubt that he offered his room. Moreover, I accept his evidence which is supported by M.H. that the two were co-workers who did not have any meaningful history. There’s no evidence to suggest he was making advances at her during the party and it appears the two organically ended up having a shot of alcohol together at the end of the night. They were not alone for this purpose. I’m not satisfied R.B. was pursuing or her or to use a more nefarious term, ‘casing’ her because he was planning on sexually assaulting her.
146Second, M.H. was brought into room 116 by R.B. and A.A. and placed on the king-sized bed. Both men exited the room and R.B. returned to the room using his room key. He testified he wanted to use the washroom. I have already explained this entry was not a wise choice but not criminal conduct per se. The Crown argues his act of locking the door is some evidence of his desire to commit a sexual act. I think that’s speculative. R.B. could not explain why he locked the door. Sometimes, bizarre actions have no explanation and I have no reason to reject this account. I am reminded he had 8-9 alcoholic drinks, thought (not incorrectly) it was still his room, knew a co-worker was in the room and may have locked the room to afford himself privacy. It makes little sense, but I cannot reject his evidence based on speculation. The evidence establishes he opened the door after using the washroom and he was still wearing his three-piece suit. It appeared to be in-tact with no clothing missing which might suggest he was preparing for an invasive sexual act. I don’t know what he did in the room except use the washroom. The video footage shows his shoes were still on. All of this leads me to find the washroom break is true.
147Third, R.B. testified he was rushed out of the room by W.H. and S.H. both of whom could not recall if they rushed him out. They also couldn’t recall if they helped take his items out of the room. This is borne out by the video footage where the parties are seen carrying items which included plates of food and R.B. appears to be carrying clothing, although it looks as if the shirt, which might be his work uniform is white. It does not show him carrying undergarments. R.B. said it was his habit to lay out clothes which included his boxer briefs. He grabbed his clothes but must have forgotten his briefs in the room which M.H. said she found in the room in the morning, next to her bed. They did not belong to her. I find as a fact the grey/green boxer briefs found in room 116 belonged to R.B. While it might be true he was rushed out of the room, I do not accept his evidence that he left his boxers behind. I simply don’t accept his evidence that he laid them out in the first place. That is illogical. It is inconsistent with his evidence that he was able to grab some clothes, but not all of them. This is not a small article of clothing like socks which could get left behind or worse yet, roll of a bed on its own. There’s also no evidence before me that the boxers were observed to be on the bed or even in the room when A.A. and R.B. brought M.H. into the room. There’s also no evidence that anybody saw boxer briefs on the floor when the hotel employees checked up on M.H. during the night. Curiously, they ended up on the floor, which I find is a piece of evidence supporting the credibility of C.B. that he saw the bare buttocks of R.B. I will discuss this evidence later on.
148Third, R.B. testified after settling into room 201, he realized he had M.H.’s cell phone which he picked up after she collapsed at the bar. I have no reason to reject his account that he picked up her cellphone but it is bizarre he chose not to deliver it to the front desk who could have given it to M.H. as opposed to choosing to deliver it himself. I will assess this evidence later on because I find he lied to C.B. that M.H. called him using her cellphone. For now, M.H. didn’t say she didn’t have her cellphone which is some evidence supporting his account he dropped it off in the room.
149Fourth, R.B. also testified he forgot his toiletries and keys in room 116 which was another reason he decided to enter the room because he wanted to retrieve them. In cross-examination he admitted he didn’t need any of these items until the morning especially because he was working the next day and could have waited to retrieve them, but he didn’t. The Crown says this is a lie and was used, like the cellphone, as a ruse to enter the room. While I tend to agree this conduct defies common sense, I cannot rule out the possibility he forgot these items in his hasty exit out of the room but as I will explain, this does not mean he was able to retrieve them when he exited.
150Fifth, I cannot be sure R.B. removed M.H.’s underwear while he was in the room with her. Oddly, he was never asked this question by counsel, but I assume from his denial of committing a sexual assault his position is he didn’t remove them. There is a gap in the record on the issue of M.H.’s underwear. I accept the account of M.H. she wore a pair of spanx which doubled as underwear to the party and in the morning discovered it had been removed. She had no memory of removing it herself. There is simply no evidence of how and by whom her underwear was removed and when this happened. What I do know is at some point after R.B. had been removed from room 116 when confronted by C.B., he learned that a hotel guest found a half-naked M.H. passed out on the 4th floor of the hotel. I can draw the reasonable inference that M.H.’s underwear was not on her body when she was seen ‘half-naked’ because the video footage shows her wearing her dress when she was placed in a wheel-chair and wheeled back into room 116. This is observed on the video footage. It would appear she did not have any underwear on when seen by the guest otherwise there would be no reason to use the term ‘half-naked’. It’s clear her bare legs were exposed but this is not a common usage of the term ‘half-naked’. Since the spanx was on the floor of the hotel room, I can infer it was not on her body when she was described as ‘half-naked’.
151As a result, I find as a fact that at some point between attending the party and waking up in the morning, M.H.’s spanx or underwear was removed but there is no evidence about when it was removed and by whom. In particular, there’s no direct evidence tying the removal of the spanx to R.B. I heard very little evidence about the nature of the spanx garment and thus cannot speculate about how difficult or easy it would have been to remove the item on its own or by somebody else. I would be speculating by concluding R.B. removed the underwear which I am not permitted to do. R.B. would have had three opportunities to do so, with the first entry being the most cogent as he was in the room for the longest period of time and locked the door. But I would be speculating. The second entry presented with less time as his entry was almost immediately followed with C.B.’s entry. There simply would be very little time to remove them and the third entry is most bizarre and I very much doubt he would remove underwear after he had been confronted by C.B. All of this leads me to infer M.H. took it off herself, but I still don’t know when. I have considered M.H.’s evidence that she woke up to a urine soaked bed but aside from R.B.’s evidence that she urinated when he was in the room and he heard this, I don’t know if this was the only time she urinated in the bed given how drunk she was or if she urinated with her underwear on because urine can still soak a bed with underwear on the body depending on the material of the underwear. Since no evidence was led about the nature of the spanx, I am left with no evidence about its characteristics and whether it would prevent urine from being expelled on the bed which might suggest it was off when R.B. was in the room on the second occasion.
152Sixth, I also cannot be sure if M.H.’s vagina was exposed when R.B. was in the room with her on the second occasion. Oddly, nobody asked R.B. about this evidence either, including whether he was able to see her vagina when he was purportedly cleaning her urine by shoving toilet paper under her body. C.B. was clear he did not see her vagina when he entered the room, but in fairness, it was an entry for 2-3 seconds before he quickly retreated. He also didn’t see R.B.’s penis which doesn’t mean he’s not credible on seeing his buttocks because if he was on top of her, he would not necessarily see a penis. He also didn’t recognize R.B.’s buttocks but there would be reason for this. He was clear it was a dark- skinned male which correctly identifies R.B.’s skin tone.
153I will now consider R.B.’s evidence about his admitted conduct when he was in the room with M.H. Again, R.B.’s position is he applied indirect force to M.H.’s body with toilet paper to clean her urine. He was clothed at the time and was not on top of her. His touching of her body was not for a sexual purpose. As noted above, if this evidence is believed, it would easily make out an assault because of his indirect application of force.
a. The toilet paper explanation
154I reject R.B.’s evidence involving the use of toilet paper to clean M.H.’s urine. I agree with the Crown’s submission this was deliberately dishonest evidence.
155The toilet paper evidence is inherently illogical and defies common sense. In fact, it makes no sense at all. R.B. said he heard M.H. urinate which caught his attention after he had dropped off her phone and retrieved his toiletries and placed them in his pockets. He took steps to retrieve toilet paper and place it under her body. This makes no sense for several reasons. It is odd that one would be able to hear somebody urinate. He was not specifically asked about how he heard urine being expelled from her body perhaps for good reason. I have given every conceivable benefit of the doubt to this account but in the context of this case, it is inconceivable that he would be able to hear urine being expelled from the body of a stranger who is laying down on a bed. Presumably, the urine was hitting the bed sheets and not for example, a hard surface such as a toilet bowl which is ceramic. There was no hard surface. I don’t know the materials of the bed sheet, but I know it wasn’t a hard surface that might make a noise. I do not believe he heard M.H. urinate. That is a flat out lie.
156It also defies common sense that R.B. would choose to help clean urine of a co-worker he didn’t know very well. It’s not as if they were friends where something like this would be less unusual. It’s also incredible that he would use his bare hands to carry soiled, urine-soaked toilet paper to a bathroom. One would expect he would clean his hands if in fact he did this, but he never testified to this. For reasons already expressed, I cannot rule out that M.H. urinated in bed but I don’t know when this happened. The Crown’s witnesses were never asked if there was urine on the bed that they could detect, and it would be odd that she would be returned to a urine-soaked bed after she was found on the 4th floor by hotel guests. But, even if M.H. did urinate at the time of R.B.’s entry into the room on the second occasion, that does not compel me to accept his reasons for cleaning her urine or even that he was on top of her for this purpose, which he denied. I find this was dishonest evidence which was used by him as an explanation for why he was observed on top of her.
b. The denial of being clothed and not on top of M.H.
157Further, I also reject R.B.’s evidence that he was clothed and was never on top of M.H. I will itemize my reasons for doing so.
158First, and foremost, R.B.’s evidence about being clothed is in conflict with the evidence of C.B. whose evidence on most areas, I accepted as credible and reliable. Clearly, C.B.’s evidence is the lynchpin to any successful Crown theory of a sexual assault because he claimed he walked into a room where R.B. was naked from the waist down which means his penis would have been exposed and he was on top of M.H. I found C.B.’s account to be credible for the following reasons:
C.B. presented as careful and balanced witness. He was not evasive in his answers and was not shaken in cross-examination on most vital points. I was able to hear and see him testify in the courtroom and he presented with a calm and confident demeanor. While demeanor must be approached with caution, it forms one part of my credibility evaluation. I disagree with the defence submission that he was “disingenuous” and “exaggerated” his account.
I believe C.B. when he said he saw the bare buttocks of a dark-skinned male on top of M.H. who was laying on the bed. I accept M.H. was laying on the bed because she was intoxicated and was last seen laying on the bed when W.H. and A.A. checked up on her. There’s nothing to suggest she gained her senses and was awake.
C.B.’s account is confirmed because R.B. appeared before me and I observed him to have dark skin. Even though R.B. couldn’t say who he saw because he only saw the person’s bare buttocks, I find it was R.B. He was careful in identifying him because he did not say he immediately recognized the male as R.B. He learned it was him after finding him hiding in the closet. There’s no evidence of another dark-skinned male who gained entry into room 116 after R.B. and prior to C.B.’s observation.
I find the observation by C.B. of R.B.’s bare buttocks was reliable because I accept he did not consume alcohol. While it is true C.B. is seen holding a bottle of beer on the video footage after he and S.H. confronted him, this bottle is never with him when he first attended the room, nor is it with him when he is viewed on video behind the front desk. I accept his explanation that he picked it up as somebody left it behind. It is not unreasonable that a person would drink alcohol in the hotel. Further, I believe him he didn’t drink any alcohol prior to starting his shift and his reference of “a few” to the police was in relation to items of food, not alcohol. I do not accept he caught himself and lied in the courtroom on this point. I find as a fact C.B. did not drink alcohol and was not inebriated. His ability to make reliable observations was not impacted by alcohol.
I accept C.B.’s confidence of his observation because he said despite the lights in room 116 being off, there was some light protruding through the windows from the parking lot and he was able to see in the room. He was clear about seeing bare legs and bare buttocks. He was not shaken on this evidence in cross-examination. He became more confident as he explained how he walked into the room, holding the door open which provided some light from the hallway as well. It is significant that he didn’t fully enter the room and make an observation in a dark room. There was some lighting and it was enough to see bare buttocks. I have viewed the video footage and C.B. immediately retreats from the room suggesting he saw something he shouldn’t have, namely bare buttocks which is a private part of the body. This post-incident evidence is relevant to his state of mind because if he had seen R.B. on the bed fully clothed and on top of M.H. there might less reason to appear shocked which I accept was his initial reaction.
I do not accept the defence argument that C.B. was not credible in his observation because of his post-event demeanor. For reasons already expressed, C.B. was clear he was confident about what he saw but unsure what to do about it because he was in shock. He was worried he entered the wrong room and deferred to management. This was a reasonable response to an unexpected event. The defence argument is anchored on a dubious false assumption. It assumes that a person who sees two parties in a sexually compromising position is expected to act a certain way. That assumption is not grounded in any evidence because C.B. made a very quick observation of a half-naked man on top of a woman. There is no “common-sense” expectation of a how a person is expected to react to the possibilities of co-workers having sex, even if one of the co-workers was really drunk. It is a fallacy to expect a he should have stayed in the room, pulled R.B. off a vulnerable M.H. and then scold him for committing a criminal act by immediately calling the police. C.B. was clear – apart from seeing bare buttocks and a man on top of M.H., he didn’t know what he walked into. C.B. quickly exited worried he entered into the wrong hotel room which would be highly embarrassing. The video footage shows him befuddled upon exiting the room and for good reason. He would have no reason to question what he walked into and did the prudent thing by engaging a manager who could make the difficult decisions about what to do. Calling the police or an ambulance wrongly assumes C.B. knew certain facts that not even M.H. could tell him at this point because of her condition. And, not every sexual assault victim would call the police or ambulance. Courts have debunked that myth and stereotype thus it does not make sense to hold C.B. to this standard. In the end, this was a workplace, employer-employee sexual encounter which demanded a much more nuanced response. It would be unfair to expect C.B. to understand the nuance of sexual assault law and expect him to act within it and criticize his credibility if he didn’t.
I believe C.B. who testified R.B. was defensive when they confronted him about being in the room. He testified R.B. said he was invited into the room to spend the night by M.H. using her cellphone. This was false but at the time it was uttered, C.B. would have no way of knowing this was untrue. He didn’t know R.B. had her cellphone.
I disagree with the defence that C.B. had animus towards R.B. and exaggerated his account because of these ill-feelings. Motive and animus are related concepts. Animus refers to hostility toward a person. Animus may form part of a motive, which is what induces a person to act.40 C.B. denied having any animus towards R.B. I believe him. He said the two did not have any relationship out of work which was either good or bad. This account is consistent with his demeanor on video as well. C.B. did not present as being angry or hostile when R.B. exited. S.H. took over and appeared to carry the conversation. There’s no evidence to suggest he had ill feelings towards him and as the defence alleged: “made up” seeing him in the room with M.H. I do not accept he invented this evidence because of ill feelings.
I also disagree with the defence that C.B. had a motive to fabricate which explains why he exaggerated seeing his bare buttocks. An ulterior motive, or a motive to fabricate, on the part of a complainant or a witness may be important evidence. From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations.41 In my view, there is an absence of evidence of any motive to fabricate on this record as opposed to proof of no motive to fabricate.42 C.B. never accepted the suggestion of having a romantic interest in R.B. which was rebuffed, which might present as a reason to be upset at him and exaggerate his account. R.B.’s evidence on this point is not credible. He referred to an incident years ago when C.B. brought breakfast to his room after he was told not to. R.B. said employees knew C.B. was gay and he wasn’t, and he communicated this to him which made him upset. C.B. couldn’t even recall this incident but said he had no feelings of any variety towards R.B. In my view, even if this occurred, this could hardly be seen as a romantic advance as opposed to a nice gesture by a co-worker. I accept the parties had a good relationship as work colleagues which standing alone, is insufficient to establish C.B. had a motive to fabricate. 43
159Second, I find R.B.’s account is inconsistent with his explanation to C.B. and S.H. about why he was in the room in the first place. C.B. testified R.B. told him he was invited into the room by M.H. to spend the night on her cellphone. I found this utterance was admissible as an admission against interest and could be received. It is probative and relevant to his credibility. At trial, R.B. said he entered room 116 to return M.H.’s cell phone and retrieve his toiletries. Both explanations cannot be true. M.H. could not have called him because he had her phone. I accept R.B. had her cellphone because it would appear this part is confirmed by the video footage which shows him holding a cellphone when he attempted to enter the room. As a result, what he said to C.B. was a lie. R.B. was also inconsistent in his account when he told C.B. M.H.’s cellphone died. This too was not true because if it died, she would not be able to call him. The cellphone evidence may explain his entry into the room but as I have already explained, the offence of break and enter is a general intent offence and it would not absolve him of entering the room because he was motivated to return the phone. He clearly knew it wasn’t his room anymore and he wasn’t allowed to be in it. As I will explain, the intention to commit a sexual assault flourished while in the room.
160Third, R.B.’s account is contradicted by the video footage in key areas. R.B. said he was able to grab his razor, toothbrush and keys and placed them in his pockets before he went to M.H.’s aid to clean up her urine. This would suggest he had them on his person when he exited the room after he was caught hiding in the closet. In other words, there’s no evidence he deposited them before exiting. I have seen the video footage and it shows R.B. wearing tight jeans. When he exits the room, there is nothing visible protruding from his pockets nor is there any bulk in the pocket. R.B. used his right hand to gesture and his left hand appears to be in the pocket, but the right pocket is visible and appears flat. While I don’t know the size of the razor, toothbrush and keys, I would expect some bulk. Nothing is observed. I have considered that C.B. also didn’t testify he saw anything in the pockets when he was speaking with him outside.
161Fourth, R.B.’s account is inconsistent with this police statement. R.B. acknowledged he didn’t tell the police about retrieving his toothbrush which is an omission but in the grand scheme of things, this is not a material omission. What is more significant is his complete omission about his urine cleaning explanation. He didn’t discuss this at all and in my view, it is fatal to his credibility. He explained he was embarrassed and followed the advice of duty counsel not to discuss anything, but this doesn’t explain why he chose to talk about some things and not the other. It is an internally inconsistent position. The urine explanation is key to his position and was a glaring omission.
162Fifth, R.B. was also internally inconsistent with his evidence about why he hid in the closet and didn’t immediately open the door for C.B. and S.H. He said “he wasn’t thinking too well” but this is contradicted by all the steps he took (on his evidence) that would require thinking, such as realizing he left his items in the room, adverting to M.H.’s cellphone and using toilet paper to help M.H. who had just urinated in bed. All of this requires some forethought. None of it happens on its own.
163The Crown argues R.B.’s post-incident conduct in hiding in the closet and lying to C.B. and S.H. about why he was in the room is also relevant to material issues of proving a break and enter, proving that R.B. committed a sexual assault and is relevant to undermining his overall credibility.
160Ms. Manitius argues the post-incident conduct is equivocal. I tend to agree with the defence that the post-incident conduct has less bearing on whether he committed a sexual act because it could equally explain his admitted conduct that he broke and entered into the room. It is not necessarily probative of a sexual assault. Post-offence conduct is a form of circumstantial evidence that may be relevant to a particular issue. I find R.B. was clothed at the time he was discovered but this was after the door was closed. He testified he heard somebody come in. This does not put a dent in C.B.’s account of seeing him naked from the waist-down because there was ample time to put on pants. As noted earlier, his boxer briefs were found on the floor in the room by M.H. in the morning. This is some evidence they weren’t being worn by him at some point and support the narrative of C.B. Apart from this, I disagree the hiding necessarily means he knew he had been caught committing a sexual act.
161As for the explanation to C.B. and S.H., R.B.’s denials of uttering why he was in the room is problematic. For one, he lied about being invited into the room. M.H. had no memory of inviting him in the room but I draw the reasonable inference she was in no shape of doing so. On R.B.’s account, she couldn’t have because he had her cellphone. The added value to this evidence is R.B.’s utterance that M.H. invited him to the room to spend the night. This is some evidence of his state of mind that there was a planned dalliance which I find M.H. did not communicate.
162For all the above reasons, when I consider the evidence of R.B. in the context of the evidence as a whole, I reject his evidence of using toilet paper to clean M.H.’s urine. This was a lie. I also reject his denial of being clothed and not being on top of M.H. I base the rejection on the significant problems identified with his evidence, as well as on my carefully considered acceptance of the evidence as a whole.44
163For similar reasons, I do not find that the evidence of R.B. raises a reasonable doubt in regards to proof of an assault at step two of W.(D.). He gave blatantly dishonest evidence about the toilet paper explanation, and I find he was seen naked from the waist-down and on top of M.H. by C.B.
164I now move to the third step of W.(D). I have taken care not to jump from rejection of his denial to proof of guilt of an assault. Under this step, I must consider whether the Crown has proved an assault beyond a reasonable doubt, which is a much broader question than whether I believed or had a doubt about his evidence when he denied the assault.
165I will first consider the evidence of M.H. She did not testify R.B. was on top of her. Indeed, she had no memory of any assaultive conduct. Of course, the act of helping her into the room was some application of force without her consent but that was accompanied with the assistance of A.A. and was done with the intention of helping her into the room because was intoxicated by alcohol. The Crown doesn’t take the position this was an assault and nor would I. In cross-examination, she acknowledged, it did not appear to her the morning after that she was sexually assaulted. There was no forensic or physical evidence that supported she had been penetrated. Her belief rested on what she was told by C.B. In my view, this evidence supports my finding that the Crown can’t prove there was sexual intercourse but it does not, when considered as a whole, raise a doubt about whether she was sexually assaulted in a different way, such as by having R.B. place his half-naked body on top of her. There would be no forensic or physical evidence. I accept she was not conscious to know what was happening at the time. Her state of inebriation was extreme. She was out of it when brought into the room and at some point after R.B. left after his third entry, found her way on the 4th floor. This shows her extent of disorientation which I find was due to intoxication. There is no evidence to suggest she was conscious and awake at the time R.B. was on top of her. Even if R.B.’s account is accepted that he was touching her with toilet paper, if she was awake and of sound mind, surely she would have felt this but there’s no evidence to suggest she did. The only reasonable inference from all the evidence is she was not in a position to know what was happening at the time R.B. was on top of her because of alcohol consumption.45 I accept her account she would not have consented to any application of force by R.B. Her evidence on this point does not raise a reasonable doubt.
166The Crown’s theory of an assault rests on the evidence of C.B. I found him to be a credible and reliable witness. I rely on my earlier findings at this stage as to what he saw and why I believed him. Ms. Manitius submitted there were other problems in his evidence including:
(i) C.B. testified he ran to get help after finding R.B. in the room but the video footage did not establish him running bur rather walking down the hall to get S.H.’s attention. I don’t view this as a material problem because the important point was getting assistance with something he didn’t know how to handle. If he was unsure about what he saw as the defence claims, there might be no need to engage management;
(ii) According to M.H., C.B. told her he found R.B. hiding the closet when in fact it was S.H. I don’t view this as a material problem because the upshot was he was hiding in the closet;
(iii) C.B. said he was cautious before he entered the room and knocked a couple of times before he entered. This isn’t seen on the video footage but having reviewed it several times, it appears to skip. It’s unclear to me if he did not knock as he said. Again, I don’t find this to be problem even if it were the case because the important point is his quick entry and exit from the room;
(iv) C.B. said he entered the room first but the video shows him entering after S.H. Again, I don’t see this as a material problem because it’s not important detail because both entered the room, finding R.B. hiding in the closet; and
(v) C.B. allowed R.B. back into room 116 after believing he committed a sexual assault. C.B. said he was overwhelmed and in hindsight probably shouldn’t have let him back in but I draw on my findings above in explaining why I don’t view this as a problem which detracts from the credibility and reliability of his core testimony of seeing a bare bottomed R.B. on top of M.H. C.B. was clear in what he saw but unclear how to resolve the issue. That is a perfectly understandable response.
167As a result, I don’t agree C.B.’s evidence had material problems which detract from his credibility. The above points are minor ones, not significant ones. The defence bears no burden of proving why C.B. might have exaggerated his account or was unreliable and therefore testify falsely.46 C.B. credibly testified upon entering into the room he saw R.B.’s buttocks which would have exposed his penis towards M.H.’s body who was under his body. In my view, this would easily prove an assault because it was an act or gesture and at the very least, an attempted one, where R.B.’s half-naked body was on top of M.H. She was not in a position to consent to having an exposed R.B. on top of her body. This was an obvious threat to apply force to M.H.’s body. It was an intentional act on his part. An assault would easily be made out.
168However, I have also considered C.B.’s evidence that he was moving up and down on her body which is some evidence of sexual penetration with his penis. For reasons already expressed, I have a doubt that this act occurred. While I found C.B. to be a credible witness, he omitted this significant detail in both his police account and his account to J.C. Like R.B. omitting his urine explanation, I would be applying a stricter standard to his evidence if I didn’t afford this omission the same level of scrutiny. While the omission to J.C. was explained as being over the phone and might be missed, the omission to the police is more troubling. I would have expected this to be front and center in his mind. As a result, I simply cannot be sure he saw R.B. moving up and down but this does not mean I have similar equivocation with his evidence of seeing bare buttocks. He was unshaken on this point and quite frankly it makes sense that if he entered the room for 2-3 seconds, it was the sight of bare buttocks that caught his attention and forced him to retreat. There would have been very little time to see the movement of the body but plenty of time to see the bare buttocks and its position on the bed. It would have been the first thing he saw given his position in the room. That said, this does not mean I think C.B. lied about the movement issue, just that I can’t be sure about the reliability of this memory because of the state of the record. I’m much more confident of his bare buttocks evidence than I am of the movement evidence. The bare buttocks evidence was thoroughly tested by Ms. Manitius in a skilled cross-examination and withstood a fierce attack. C.B. was given every chance to soften his position that maybe he was mistaken. Maybe it was a dishonest mistake or even an honest one. He was firm in his position it was not a mistake. He saw bare buttocks which invariably means a penis was exposed. There is simply no reason to reject this evidence. Nor does it raise any doubts in my mind when considered amidst all the other evidence.
169Consequently, applying the W. (D.) framework to the evidence, the Crown has proven beyond a reasonable doubt R.B. committed an assault on M.H. by placing his body with his exposed penis on top of M.H. in circumstances where she could not consent. It was an intentional gesture accompanied with an eventual threat to apply force. The Crown’s evidence does not prove sexual intercourse but does prove an assault. The question becomes does this act constitute a sexual assault for purposes of the law?
(v) Was R.B.’s proven conduct, objectively viewed, committed in circumstances of a sexual nature?
170For similar reasons as expressed above, I reject R.B.’s evidence that he only applied force to M.H. with toilet paper and instead find he was naked from the waist-down with his penis exposed and was on top of M.H. The rejection of his evidence when considered in the context of all the evidence, does not leave me with a reasonable doubt about whether this act constituted a sexual assault.
171This element of the offence of sexual assault is determined objectively. The Crown does not have to prove R.B. had any mens rea with respect to the sexual nature of his behaviour. 47 In Chase, supra, the Supreme Court described the sexual nature of the contact and stressed: … “the part of the body touched, the nature of the contact, the situation in which it occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied with force, will be relevant […] 48 The sexual nature of the contact element can also be derived from the context as opposed to the touching. 49
171In my view, applying the above principles including the direction from Edgar that a sexual assault can occur even in the absence of actual physical contact, a reasonable observer would easily come to the conclusion that a male with his penis exposed who placed himself on top of a woman who is passed out on a bed and who could not communicate consent to have an exposed man on top her, would amount to violation of one’s privacy and dignity. It is deeply offensive conduct which is an affront to one’s dignity and autonomy. From the perspective of R.B., the only reasonable inference that arises from this position is that he was preparing to commit a more invasive sexual act, possibly intercourse, before he was intercepted by C.B. Regardless, the exposure of his penis was a deliberate act and could only be done for his sexual gratification. This would be enough to reasonably infer one’s mental intent beyond a reasonable doubt. The location of the parties on the bed with a male on top of a woman simulates a sexual act. One does not have to remove their shirt and be fully naked to obtain sexual gratification, so the fact he wasn’t fully naked is immaterial. There can no other reasonable reason to expose oneself unless sexual gratification of some variety was sought. Otherwise, there would be no reason to have one’s penis exposed. In other words, if R.B. was truly just placing toilet paper around M.H.’s body and touching her for this purpose, there would no reason to be exposed from the waist down.
172I have considered the evidence as a whole including the doubt I had as to whether R.B. removed M.H.’s underwear because it was clear it was off when she woke up. She did not say R.B. removed it and nor could C.B. confirm if it was removed when he saw C.B. on top of her. My doubt as to C.B.’s movement evidence doesn’t necessarily mean the underwear was off or on at the time R.B. was seen on top of her body with his penis exposed. It puts a dent in the sexual intercourse theory but not on a different type of sexual assault. R.B. consumed 8-9 alcoholic drinks and made several poor decisions that night. Self-induced intoxication was not raised as a defence to the crime of sexual assault, but it would appear if I was invited to assess this issue, R.B. didn’t appear obviously impaired. This was clear from the video footage when he was confronted by C.B. in the hallway. A thorny issue is whether he was in an advanced (as opposed to extreme) state automatism as a result of his self-induced intoxication, which might negate proof of the actus reus, but this was never raised or argued and I decline to address it. 50 It is even arguable whether this issues arises on this record given my findings about the extent of his level of intoxication.
173When I consider the evidence as a whole, I am satisfied the Crown has proven the actus reus of a sexual assault which co-existed with proof of his mens rea. To review, R.B.’s mens rea can be inferred from the all the circumstances which included (i) evidence of his persistent efforts in entering a room he knew he wasn’t allowed to be in knowing M.H. was in the room inebriated, (ii) evidence of him removing his pants, exposing his penis and positioning himself on top of M.H., (iii) evidence of him knowing M.H. could not (and did) not consent because of her intoxication, (iv) evidence of his boxer briefs being discovered in the room by M.H. suggesting they were not on his body and confirming the account of C.B. seeing bare buttocks, (v) evidence of his lie that M.H. invited him into the room to spend the night and (vi) evidence of his omission to the police about his explanation involving cleaning her urine with toilet paper.
174I have a suspicion, and a strong one, that M.H.’s vagina was exposed at the time he was seen on top of M.H. but since I can’t say for sure, the Crown’s burden of proof requires me to resolve this suspicion in favor of R.B. Regardless of this issue, the actus reus is easily proven and the mens rea is easily inferred from all the evidence and it is the only reasonable inference to be drawn from all the evidence using the Villaroman standard. There can be no other reasonable inference except R.B. was committing a sexual act for his gratification with a drunk and asleep woman who could not have granted him consent.
175To be clear, I have not concluded R.B. is guilty of the offence of attempted sexual assault even though this charge may be available to the Crown by virtue of s. 24(1) in the Criminal Code. The parties did not make submissions on this issue and I need not address it. Rather, I am persuaded by the reasoning in Edgar, supra that since s.265(1)(b) includes credible attempts to apply force to another, attempts that include a sexual element would be deemed a sexual assault. In other words, the actus reus of sexual assault is broad enough to cover R.B.’s proven conduct, therefore it is proof of a sexual assault contrary to s.271 of the Criminal Code which is the offence that he was charged with. 51
(vi) Did M.H. not consent to the to the touching or unlawful assault? If applicable, did R.B. honestly believe M.H. consented to the touching or unlawful assault?
176For the sake of completeness, the final two legal questions in the analysis involve an assessment of whether the Crown can prove lack of consent in so far as the proven conduct of R.B. This requires proof of whether M.H. did not consent to the act or gesture by R.B. and if applicable, whether R.B. honestly believed M.H. consented to the act or gesture. As I have already explained, these two questions are not directly engaged in this case because the evidence easily establishes M.H. could not communicate consent to any act or gesture, sexual or non-sexual, because of alcohol consumption. In other words, she did not have the capacity to consent to have an exposed R.B. on top of her or even on his account, touched with toilet paper near her vaginal area. Consent for sexual assault purposes is assessed from the subjective perspective of M.H. not from R.B.’s mindset. There was no voluntary agreement to engage in the activity with R.B. 52 Although his explanation may be relevant in determining whether the act was objectively viewed a sexual act, I have already explained why I rejected his admitted touching and why it didn’t raise a reasonable doubt in my mind about a sexual assault. Nor is there any evidence that M.H. could have consented to the sexual nature of the act which the Crown has proven occurred beyond a reasonable doubt involving R.B.’s body on top of M.H. with his exposed penis. 53Therefore, the Crown has proven M.H. did not consent to this sexual assault. As a result, the belief of R.B. as to consent does not arise and need to be addressed.
V. Conclusion
177In conclusion, the Crown has proven beyond a reasonable doubt R.B. broke and entered into room 116 and committed the indictable offence of a sexual assault on M.H. in the manner described above. Convictions will be registered on both counts.
178The court would like to commend the conduct of both counsel who embraced a collaborative approach in the presentation of evidence to ensure a fair virtual trial. This was not required but embraced because it enhances the administration of justice.
Released: February 16, 2021
Signed: “Mr. Justice F. Javed”
Footnotes
- See R. v MacDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494.
- 2020 ONSC 3870
- See R. v. R. (R) (2001), 2001 CanLII 27934 (ON CA), 159 C.C.C. (3d) 11 (Ont. C.A.) at para. 43, affirmed on other grounds: 2003 SCC 4, 171 C.C.C. (3d) 575; R. v. A. (J.) 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 36
- R. v. R. (J.) 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.) at paras. 41-45
- R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302
- R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para. 25; R. v. J.A. 2011 SCC 28 at para. 23; R. v. Barton, 2019 SCC 33 at para. 87
- R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63 at 74
- See s.265(1)(a) Criminal Code; R. v. Barton, 2017 ABCA 216 (varied on other grounds: 2019 SCC 33 at paras. 201-2016.
- S. 265(1)(b) Criminal Code
- R. v. Edgar, 2016 ONCA 120 at paras. 3, 10.
- Ewanchuk, supra at para. 25.
- Chase, supra at p.302; R. v. Marshall, 2017 ONCA 801, [2017] O.J. No. 5409 (C.A.) at para. 52.
- R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at paras 25 and 42.
- R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60, at para. 36.
- Chase, supra at p. 302; Marshall, supra at para. 53.
- See s.662(6) Criminal Code
- R. v. Quin, [1998] 2 S.C.R. 825
- R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574 at para. 39.
- (2007), 2007 SCC 53, 226 C.C.C. (3d) 1 at para. 35 (S.C.C.)
- Quin, supra.
- R. v. Groom, [1990] B.C.J. No. 2757 (B.C.C.A); R. v. Ratzlaff, 2006 SKPC 104, [2006] S.J. No. 697.
- R. v. Liang, [2008] A.J. No. 1489
- Exhibit 2: Keycard Control Log
- R. v. J.H.S., 2008 SCC 30; R. v. C.L.Y., 2008 SCC 2.
- R. v. Marin-Ariza, 2012 ONCA 385 at para. 18.
- R. v. Cepic, 2019 ONCA 541 at para. 2; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.
- R. v. Quartey, 2018 SCC 59, at para. 3; R. v. G.H., 2018 ONCA 349, at para. 5; R. v. F.B.P., 2019 ONCA 157, at para. 9.
- R. v. J.A.A. 2011 SCC 17, [2011] 1 S.C.R. 628 at para. 14; R. v. Hemsworth, 2016 ONCA 85 at para. 45.
- Murphy and Butt v. The Queen [1977) 1976 CanLII 198 (SCC), 2 S.C.R. 603 at 617; R. v. Boss, (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.), R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9; R. v. Clark, [1995] O.J. No. 4036 (C.A.) at para. 7.
- R. v. H.C., 2009 ONCA 56, at para. 41.
- R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 526.
- 2020 ONCA 128, [2020] O.J. No. 677 (Ont. C.A.)
- Lights, supra at paras. 36-39, citing R. v. Villaroman at para. 37-38.
- R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301 at para. 108, 116 per Martin J. (dissenting, but not on this point).
- See R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, 25 C.R. (4th) 46, 85 C.C.C. (3d) 97; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, 62 C.R. (3d) 137, 38 C.C.C. (3d) 481.
- [1984] S.J. No. 958
- Edgar, supra at para. 10
- R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (ONCA), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).
- R. v. Edwards, 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20.
- R. v. Darnley, 2020 ONCA 179, at para. 46.
- R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412
- R. v. Ignacio, 2021 ONCA 69 at para.
- See Ignacio, supra at para. 33, R. v. Bartholomew, 2019 ONCA 377 at para. 25.
- R. v. J.J. R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal refused [2007] S.C.C.A. No. 69; R. v. R.A., 2017 ONCA 714, at para. 56.
- See R. v. Al-Rawi, 2018 NSCA 10 at para. 66
- R. v. Krack (1990), 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.); at pp. 561-562
- R. v. Ewanchuk, at para. 25
- Chase, supra at p.302
- See R. v. Higginbottom, 2001 CanLII 3989 (ON CA), [2001] O.J. No. 2742 (C.A.) at para. 10; R c Alceus (2000), 2000 CanLII 9443 (QC CA), 151 C.C.C. (3d) 91 (Que.C.A.) at para. 33
- See for example, R. v. Sullivan, 2020 ONCA 333
- See R. v. W (S) [2004] O.J. No. 5486 at paras. 17-20
- R. v. Hutchinson, 2014 SCC 19
- See for example, R. v. Makray, [1982] O.J. No. 195; R. v. Orpin, 2002 CanLII 23600 (ON CA), [2002] OJ No. 1541 and R. v. Dinardo, 2014 ONCA 758 which stand for the principle that a complainant must consent to the physical act but also the act occurring for a sexual purpose. Thus, for example, if the evidence established R.B.’s penis was exposed while he was touching M.H.’s body in the area of her vagina with toilet paper, she would have had to consent to the sexual nature of this act.