WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2022 02 18 Court File No.: Central East Region: Oshawa Court File #18-37264
Between:
HER MAJESTY THE QUEEN
— AND —
ORAL RICHARDS
Before: Justice Peter C. West
Evidence Heard on: November 4 and 5, 2021 and February 17, 2022 Oral Submissions Heard on: February 17, 2022 Oral Reasons for Judgment released on: February 18, 2022
Counsel: Ms. D. Portolese............................................................ counsel for the Crown Mr. D. Barrison.................................. counsel for the defendant Oral Richards
Introduction:
1Oral Richards was charged that on July 15, 2018, he sexually assaulted G.T. The Crown called 4 witnesses: G.T., the complainant; her friend, S.W.; Renata Dziak, Forensic Biologist at the Centre of Forensic Sciences and Julia Heeps, Nurse with Durham Regional Domestic Violence Centre, at Lakeridge Health and an Agreed Statement of Facts respecting some of evidence of Ms. Heeps. Oral Richards testified in his defence.
Factual Background
2G.T. testified she went with friends to Hops House. She had recently turned 19. Before leaving S.W.’s house she had two glasses of wine. While there she had no more than two drinks. She and her friends were dancing and Oral Richards began dancing and talking to her and one of his friends was dancing and talking to one of her friends. She told Oral Richards she had a boyfriend but he kept asking for her phone number and invited her to come to his house. She ultimately gave him her phone number because he kept harassing her but she agreed she did not give him a fake number. Everyone was dancing together in a group. In cross-examination she agreed she was dancing with Oral Richards. She left the bar with some friends and went to her boyfriend, Mr. F.’s house. She had one drink at his house. She was starting to feel the effects of the alcohol. She arrived back at S.W.’s house and found her friends and was surprised to see Oral Richards and his friends there as well. She believed S.W.’s brother knew them. They were all playing drinking games and she joined in. At some point she told S.W. she was going upstairs to put on her pajamas as she planned to sleep over at S.W.’s house.
3In cross-examination she testified she was not black out drunk but she was on way to being intoxicated. When came downstairs Oral Richards was about 6 feet from the bottom of the stairs, walking towards the kitchen. She agreed he did not prevent her from going to the kitchen. She stopped and was talking to him.
4She put on her pajama shorts she had brought to S.W.’s house and when she came downstairs she saw Oral Richards at the bottom of the stairs. He asked her how her night was going. They were having small talk. They were in the hall going to the bathroom. Everyone else was in the kitchen. She testified the next thing she knew she was in the bathroom. She did not know how she got in there. Oral Richard came in after her, he turned on the lights and closed the door and when she turned to face him she said he had his penis out and it was erect. She asked why he had it out and he turned her around towards the sink and said don’t worry it will be okay. His hand was on her back and he pulled down her pants and underwear. Her behind and her vagina were exposed. She could not remember if they completely down or partially down. It felt to her like an out of body experience. She was completely frozen, unable to move or speak. She could not believe what was happening. He forcefully penetrated her with her tampon inside her as she had her period. He was making comments, “I can’t get it in.” She said to him, “Can you stop you’re hurting me.” She testified she never once said she consented. Someone knocked on the door to try to get in. G.T. testified she was saying “Stop you’re hurting me.”
5In cross-examination she said she really did not recall what happened after she started talking to him but the next thing she knew she was in the bathroom. Alcohol was not affecting her memory. She had no recollection of how she got to the bathroom. Oral Richards did not drag her to the bathroom. She did not recall his hands on her outside the bathroom. She was the first one in the bathroom and he did not lead her there or have his hands on her. The bathroom was at least 5 feet from the stairs. She did not recall if he said anything to get her to go to the bathroom. She initially said he had an erection and then said all she knew he was forcefully attempting to penetrate her. She then testified she didn’t know if he did or didn’t have an erection but she would disagree he didn’t. There was no kissing. She did not recall him ever touching her breast. He was trying to get her to spread her legs and his hand was on her back.
6G.T. initially testified Mr. Richards took her into the laundry room and bent her over one of the machines. She tried to push him off. He then got inside of her for a full 5 minutes. He ended up finishing inside of her. She was hyperventilating. She pulled up her pants and walked out.
7In cross G.T. testified she did not recall how she got into the laundry room. She did not recall the bathroom door opening or how she got to the laundry room. The biggest gap in her memory is how she got into these two rooms. She did not know if she walked in or if Oral Richards dragged her.
8After Oral Richards and his friends left the house she received a text, “Are you sure you’re okay?” She did not reply.
9G.T. testified she called her best friend after going home from S.W.’s house in the morning of July 15. Her best friend told her to go to the hospital, which she did on July 16. Ms. Heeps’ Report (Exhibit 6) indicates G.T. went to Lakeridge Health at 21:07 and was seen by the Ms. Heeps at 21:20. She brought her pajama shorts and underwear with her. She had a bruise to her inner thigh of her right leg, which she testified she had not seen before the incident.
10This bruise was observed by Nurse Heeps and described in her report. An issue arose during Ms. Heeps’ evidence respecting observations she testified about that were not contained in her report. It was agreed that her evidence by Zoom from British Columbia, where she had retired to, would be adjourned. On February 17, 2022, the Crown had lost contact with Ms. Heeps and as a result counsel had come to an Agreed Statement of Facts respecting Ms. Heeps’ evidence. It was agreed by counsel that because Ms. Heeps did not have an independent recollection of her examination of G.T. and was relying on her report as past recollection recorded her evidence respecting swelling in the vaginal wall, which was not recorded in the report, was to be excluded from consideration. Further, it was also agreed her evidence that the bruise to the inner thigh was not more than 48 hours old should also be excluded. It was agreed by counsel that this bruise was fresh and was not weeks old but there was no date being put on it from a medical standpoint as no expert evidence was called by either the Crown or defence.
11In cross-examination G.T. testified the clothes she turned over to the nurse at the hospital were the clothes she was wearing on the early morning of July 15. She had two pairs of the pajama shorts, which were the same. When she grabbed one of them she grabbed one she thought was clean but she had worn the week before. Her bra and t-shirt were not removed exposing her breast. When she was asked about Oral Richards DNA being found on her breast she testified this was new information to her. She testified the other male DNA found on the pajama shorts and underwear was likely from her boyfriend. She testified she did not know how the other male’s DNA was found on her external vagina. She did not recall if she engaged in vaginal intercourse prior to July 15. G.T. disagreed with the suggestion she and Mr. Richards were making out in the bathroom and he could not get an erection. Although she testified in chief that while she was in the bathroom with Mr. Richards that someone knocked on the door wanting to get in, during her cross-examination she disagreed with the suggestion someone had knocked on the door to the bathroom and said they had to use the bathroom and go use the laundry. She maintained in her evidence that Mr. Richards put his penis in her vagina in the bathroom and in the laundry room and that it was in laundry room that he ejaculated inside her vagina.
12S.W. testified she was G.T.’s best friend. She went with G.T. and other friends to Hops House. She had seen G.T. and Oral Richards dancing at the club on the dance floor. Mr. Richards was behind her and G.T. was in front of him and she did not think there were any of their other friends around them dancing. G.T. left to go to another friend’s house from the bar but was planning to sleep over at S.W.’s house. G.T. arrived at S.W.’s home about a half an hour after S.W. and the others, including Oral Richards and his friend, arrived back at her house. S.W. had texted G.T. that she should come back to S.W.’s house.
13After G.T. arrived at S.W’s house she was with everyone in the kitchen. At some point they got separated and S.W. went to look for her. She wasn’t in the washroom but she noticed the laundry room door was closed so she opened it and heard G.T. say, “No stop.” It was said quickly and sternly and she assumed G.T. was talking to S.W. to close the door so she went back into the kitchen. It was dark in the laundry room so she did not see what was happening. She later saw G.T. going upstairs, G.T. was in S.W.’s bedroom but S.W. couldn’t open the door as G.T. was up against the door. When she went into the room she saw G.T. and she was rocking back and forth and G.T. said, “I don’t know what happened, I don’t know what happened and she was crying and upset and very distressed. She said you have to get these people out of the house, “Get them out, get them out.” Her body language with her head down. So S.W. testified she went downstairs and said to those guys (Oral Richards and the guys with him) “I don’t know what happened but you have to leave” and they left.
14S.W. testified that Mr. Richards had driven her back to her house. She agreed she texted G.T. to come to her house after they all got back. S.W. had no concerns about Mr. Richards and as far as she knew G.T. had not expressed any concerns about Mr. Richards. When she went to look for G.T. she checked the washroom it was empty and then she saw the laundry room door was closed so she opened it. She did not knock on the door and she did not hear anything before she opened the door. I heard “No stop” and I took it as a direction to me. As she shut the door she did not hear anything. Only heard “No stop” once and saw it as a reaction to her opening the door. S.W. agreed she did not have any safety concerns. She saw G.T. go upstairs about 10 minutes later but she was not keeping track of the time. S.W. believed she told G.T. she heard her say “No stop” when S.W. opened the door.
15Oral Richards testified in his defence and described his interaction with G.T. He testified that he went to Hops House in Whitby around 10 or 10:30, with his friend, Alex and a friend of Alex. While they were there he had two Corona bottles of beer. Some girls were dancing on the dance floor and he and Alex joined them. He began dancing with G.T. and Alex was dancing with a friend of G.T. He did not know G.T. or any of her friends. As it turned out Alex knew one of the guys who were with G.T. and her friends.
16He and his friends had been at the bar for about 20-25 minutes before he met G.T. and was dancing with her. He asked G.T. for her ID to confirm how old she was because of a situation he had been in previously. She provided it to him and he testified he was satisfied with her age. G.T. had also given him her phone number, which he put in his phone. He and his friends continued to hang out in the bar for another hour to an hour and a half. He did not see G.T. after he had danced with her and did not expect to see her again.
17As they were getting ready to leave Alex asked if Mr. Richards would drive him to a house where there was going to be a party. When they got there they all went in. They were all drinking vodka from a bottle and listening to music. He thought he had 4 or 5 shots from the bottle as 6 or 7 people were drinking from it. They were all in the kitchen area just off the living room. At some point later he saw that G.T. was also in this house. He spoke to her in the kitchen and then she went upstairs to change into something more comfortable. She came downstairs wearing pajamas. He again spoke to her in the kitchen and asked if she wanted to talk somewhere just the two of them and they went into the living room. Then she went to washroom and he went with her. He did not recall what their conversation was about. He had suggested they go in the washroom and they both went there. He did not physical force or direction to get G.T. into the bathroom. She walked with him and went in first. The bathroom was about 15 feet from where they were talking in the living room.
18He did not believe G.T. was under the influence of alcohol. He testified he thought they were going to have a “moment.” They started making out in the washroom. He was kissing her on her neck and chest and they were kissing each other on their mouths. She never told him to stop. She was kissing him back. She never pushed him back or away from her. She never told him to stop what they were doing. He did not have any indication she was uncomfortable.
19He believed their making out was progressing into something more. He initiated an attempt to have sex with her by pulling down her pants. It was mutual as she turned around and was now facing the sink and mirror. He was not forcing her. She never told him to stop. There was no resistance from G.T. when he pulled down her pants, He pulled down his pants and he continued to kiss her neck and breasts. As he pulled down his pants Mr. Richards testified he realized he was too intoxicated to get an erection and he told her this. G.T. said it was fine. He pulled up her pants and his own and stopped trying to have sex with her. When this happened he remembered her saying, “I’m in my period.”
20Mr. Richards testified he did not specifically asked G.T. if she wanted to have sex. He was using his intuition from them making out and kissing and his pulling down her pants. He was not forcing her at any point to do anything. They were in the bathroom for 5 or 6 minutes. His friend Alex came and knocked on the door and said they needed to use the washroom and he also said for them to use the laundry room. Mr. Richards and G.T. left the bathroom. They went back to mingle with everyone in the kitchen. He and G.T. continued to talk to each other.
21About 10-15 minutes after they left the bathroom Mr. Richards suggested they get away from the group again as he wanted to talk to her some more. They went to the laundry room. She was not having any difficulty walking on her own. It was pretty dark in the laundry room and they could not see each other. They made out again, kissing each other and holding each other. He did not make any further attempt to have intercourse with her. G.T. was kissing him back and had her arms and hands on him. They were facing each other. G.T. was not pushing him away or pulling him. He touched her breasts and butt in the laundry room. Nobody knocked on the laundry room door while they were in it.
22When they left the laundry room G.T. seemed a little uncomfortable, her face was down and he could tell this from her body language. She did not say anything to him and went upstairs with her friend. He went upstairs to make sure she was okay and saw her friend and asked if G.T. was okay and she said everything was okay. She said that he and his friends had to leave, so they left.
23They got in his car and then he decided to go back inside and went back upstairs. He saw G.T.’s friend again and asked if everything was alright and she said yes. He dropped Alex and his friend at Alex’s house and went home.
24In cross-examination the Crown asked Mr. Richards about the statement he provided to the police when he was arrested on September 28, 2018. He agreed he spoke to a lawyer before speaking to Detective Constable Willis. He knew he did not have to give a statement to the police. Everything he said to the police was the truth. He agreed memories fade over time and his memory three months after an incident would be better than 3 years after.
25He agreed he told the officer a number of times in the statement he did not remember specific details from that night he was with G.T. He agreed alcohol would have affected his memory. He remembered saying to the officer he was intoxicated and he agreed when the officer asked him, “Do you recall this incident, that I, does this bring any type of recognition to you, at all? In terms of the incident from July?” he responded “very vaguely, but…” He agreed that he told the officer he did not remember much. He testified he did not plan on being in a police station and was doing the best he could. He told the officer throughout his statement he had not done anything wrong.
26The Crown put to Mr. Richards he never asked for G.T.’s ID and he disagreed and said he had. The Crown suggested the ID could be fake so how would that help him know her age. Mr. Richards said he testified he did that because that was exactly what happened. When the Crown pressed him about his lack of recollection Mr. Richards testified he had not had a chance to sit down and remember what had happened between him and G.T. that night. He needed to collect his thoughts about it and think about it.
27The Crown’s cross-examination was persistent and Mr. Richards was asked pointed questions respecting his evidence in chief; however, he remained calm and composed in answering the Crown’s questions. At no time did he become argumentative or evasive. He did not become upset. His evidence in chief and cross-examination was consistent and unswerving.
28He testified the first time he noticed any uncomfortability on G.T.’s part was when they came out of the laundry room. It was her head being down, her body language and her running upstairs. This was why he went upstairs to see if she was okay. He was told she was okay. The Crown asked if he sent G.T. a text after he left and Mr. Richards testified he thought he sent her a text maybe a couple of days after.
29Mr. Richards was shown a screen shot of a text message from a cell phone that had his cell phone number at the top. This had not been shown by the Crown to G.T. Mr. Richards testified it looked like conversation he had with G.T. on July 15, early morning. The first text he believed was at the club and the second text at 4:47 a.m. was when he texted her. When he was asked about his previous answer he said he did text her but he obviously made a mistake about when. The text was made Exhibit 7.
30In re-examination Mr. Barrison directed Mr. Richards to a number of occasions when he said to D.C. Willis when he was asked about what had happened that his lawyer had told him not to speak to the police and he thought maybe he should speak to his lawyer before answering any more questions. He said to the officer on a number of occasions that the allegation was B.S. and he “would just rather say what I have to say to my lawyer, man. This is, I don’t, I don’t even know what to say right now. My whole day, my whole week just got fucked up. I just wanna get this over with. I’m not running from anything, so…” Mr. Richards told the officer when he heard they wanted to speak to him he came immediately.
31Mr. Barrison directed Mr. Richards to areas in his statement where he told the officer he did not remember just to have the officer stop asking him questions. He said a number of times his lawyer told him not to say anything so that was what he was going to do. He said he just wanted to get back to his life and that this was preposterous and he’d rather just talk to his lawyer about it first. They could figure it out in court. He told the officer he did not want to be disrespectful.
The Law Relating to R. v. W. (D.) and R. v. Villaroman
32As in any criminal case, Oral Richards is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
33The onus remains on the Crown to prove Oral Richards’ guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.
34A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.
35As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:
W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.
36I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:
However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
37Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant’s evidence but still not being sufficiently satisfied by the complainant’s evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus, supra.
38I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence. ( See R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
The Law Respecting Sexual Assault
39The elements of the offences charged are not disputed by counsel and as a result, I intend to only briefly address the essential elements of the offence of sexual assault which is the charge facing Oral Richards. In a case under s. 271 of the Criminal Code of Canada, the Crown must prove beyond a reasonable that the accused had the actus reus of the offence and the mens rea: R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at para. 87. The accused must have intentionally touched the complainant "knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched": Barton, at para. 87.
40Sexual assault requires the Crown to prove the following essential elements beyond a reasonable doubt:
i) That the defendant intentionally applied force;
ii) the complainant did not consent to the force that the defendant intentionally applied;
iii) that the defendant knew that the complainant did not consent to the force that he intentionally applied or was reckless; and
iv) that the force that the defendant intentionally applied took place in circumstances of a sexual nature.
41The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact that sexual assault is a general intent offence, and the requisite elements of the offence: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11 [Chase]; R. v. Jarvis, 2019 SCC 10, [2019] S.C.J. No. 10, at paras. 50, 124-125; R. v. Ewanchuck, [1999] S.C.J. No 10. The test outlined in Chase is still the focus in most sexual assault trials:
…The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [Citations omitted.]
42The role of consent was recently defined in R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20, at para. 25:
The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.
43In R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 31, the majority held consent is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" and at para. 36, “consent must exist at the time the sexual activity in question occurs” In Barton, at para. 88, the Supreme Court, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57, held:
…as s. 273.1(1) makes clear"consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act""the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases"
44Section 273.1 of the Criminal Code provides:
(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) No consent is obtained, for the purpose of sections 271, 272 and 273, where
a) The agreement is expressed by words or conduct of a person other than the complainant;
b) The complainant is incapable of consenting to the activity;
c) The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
d) The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
e) The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained.
45Recently in R. v. H.W., [2022] O.J. No. 135 (C.A.) at paras. 42-46, the Ontario Court of Appeal held:
42 Central to both the actus reus and the mens rea for sexual assault is the issue of consent"the foundational principle upon which Canada's sexual assault laws are based": G.F., at para. 1.
43 The Code defines consent for the purpose of sexual assault. Under s. 273.1(1) of the Code, consent means "the voluntary agreement of the complainant to engage in the sexual activity in question." It means the conscious agreement of the complainant to "every sexual act in a particular encounter": J.A., at para. 31. Section 273.1(2) of the Code contains a non-exhaustive list of circumstances in which consent is not obtained, while s. 273.1(3) "authorizes the courts to identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code": J.A., at para. 29.
44 Consent, so defined, is analyzed from a different perspective at the mens rea stage than it is for the purpose of determining whether the actus reus was committed: Barton, at para. 89.
45 At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26; G.F., at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton, at para. 89.
46The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused's mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton, at para. 87.
Analysis
46During submissions counsel agreed that in this case there is no issue respecting honest but mistaken belief in consent. There is also no issue as to whether sexual activity occurred as both G.T. and Oral Richards testified to sexual activity occurring, although there is a disagreement between Mr. Richards and G.T. as to what sexual activity occurred. Further, there is the issue of whether G.T. consented to whatever sexual activity occurred.
47The defence and Crown both agree that this case to a large extent is governed by R. v. W.(D.), referred to above. Mr. Barrison submitted on the totality of the evidence the Crown has not met its onus to prove the charge beyond a reasonable doubt. Ms. Portolese submitted on the evidence the Crown had proven the charge of sexual assault beyond a reasonable doubt and Mr. Richards should be found guilty.
48Mr. Barrison argued there are significant gaps in G.T.’s evidence, she became combative at points during her cross-examination and attempted to minimize things at times and at other times was evasive. One area in G.T.’s evidence related to her consumption of alcohol on the night in question. In my view G.T. did become combative and argumentative with Mr. Barrison, whose questions were frankly innocuous, not accusatory, and relied on evidence she had previously given as to her consumption of alcohol. Her combativeness resulted in her refusing to answer Mr. Barrison’s question, saying to him, what importance did it have.
49She also tried to characterize her initial interactions with Mr. Richards on the dance floor at Hops House as Mr. Richards interacting with her aggressively. Refusing to initially admit she was in fact dancing with Mr. Richards, and testifying she believed he was pursuing her. Yet her friend, S.W. described her as being the only person dancing with Mr. Richards for a period of time as S.W. and their other friends were across the room some distance away - it was just the two of them, according to S.W., G.T. and Mr. Richards who were dancing together. Mr. Richards was behind G.T. and she was right in front of him. Mr. Barrison submitted this was an example of G.T. trying to bolster her credibility but portraying herself as having no interest in Mr. Richards.
50G.T. also attempted to portray Mr. Richards as the aggressor with respect to his obtaining her phone number. Yet the evidence was clear on her part and Mr. Richards and S.W. who saw them together at Hops House that they were only together for a brief period of time and then did not hang out together after they left the dance floor. Mr. Richards did not pursue G.T. or try to hang out with her after they danced. G.T. gave Mr. Richards her cell phone number in this brief period of time they were together, which was described as 5-10 minutes, when they were dancing together, just the two of them according to S.W. In my view G.T.’s evidence did not accord with everyday experience and logic. If she did not want to give Mr. Richards her cell phone number give him a fake number but G.T. did not do that. These instances of her either attempting to minimize something she did or attempting to portray Mr. Richards in a bad light leads me to be concerned G.T. had an agenda when she testified. Further, by exaggerating her initial contact with Mr. Richards at a time when there are no issues raises concerns that G.T. is trying to bolster her credibility on the evidence, relating to what happened in the bathroom and laundry room.
51It is my view there are two very significant gaps in G.T.’s evidence relating to how she first ended up in the bathroom and second, ended up in the laundry room. She has no memory of any conversation with Mr. Richards that perhaps could shed some light on why she ended up in the bathroom, it was only 10-15 feet from where they are talking and yet she has no recollection how she got there. Related to this is her testifying initially in chief that someone did knock on the bathroom door wanting to use it, to later in cross testifying that no one knocked on the bathroom door. Of course, if someone knocked on the bathroom door and G.T. and Mr. Richards left the bathroom, either to join the others in the kitchen (as testified by Mr. Richards) or that Mr. Richards took G.T. directly to the laundry room (as initially testified to by G.T. in chief) this would mean they might have come into contact with the individual who knocked on the door. G.T.’s evidence becomes more concerning because her evidence changed in chief to she did not have any recollection of how she got into the laundry room. The defence submits this gap is convenient on G.T.’s part.
52There is no evidence that G.T. was drugged, which might explain why she has no recollection of how she got into the bathroom or the laundry room. Exhibit 6 does indicate that blood was taken from G.T. by Nurse Heeps and analyzed but this section of the report is redacted. No expert evidence as to what might account for these two significant gaps in G.T.’s evidence. There’s absolutely no explanation provided.
53The Crown recognized the significance of G.T. having no recollection of how she ended up in the bathroom or laundry room. She conceded “it would be more helpful to ascertaining exactly what happened if [G.T.] was able to provide evidence of how she exactly got into the bathroom.” She submitted I should not find G.T. willfully omitted this evidence and that this gap need not affect her credibility or reliability. She argued that G.T. never went back to the kitchen based on the evidence of S.W.; however, it is my view that S.W.’s evidence does not support the inference urged on me by the Crown. S.W. went looking for G.T. because she had not seen her for awhile and when she got to the bathroom nobody was in it. She then saw the laundry room door closed so she opened it and immediately heard G.T. say sternly and quickly, “No stop,” which she assumed was directed to her opening the door between 10-12 inches, so she immediately closed the door and left. S.W. does not provide any evidence that prior to her leaving the kitchen to look for G.T. she had not seen G.T. in the kitchen because she was not asked. In my view these two gaps in G.T.’s evidence seriously affect G.T.'s credibility and reliability.
54Further, the DNA evidence provided by Ms. Dziak from CFS, completely contradicts G.T.’s version of what occurred in the bathroom and in the laundry room. On G.T.’s evidence, Mr. Richards did not remove her bra or her tank top. Her breasts were never exposed. He did not touch her breasts or kiss her breasts. In fact, G.T. testified there was no kissing whatsoever of any kind between Mr. Richards and herself. On G.T.’s evidence there is no way for Mr. Richards’ DNA to be deposited onto the nipple of her right breast. On the evidence of Ms. Dziak this was not something that could be transferred from clothing.
55The same problem arises when considering the DNA evidence of another male person being discovered on the external genitalia swab taken by Ms. Heeps and on the semen discovered on the waistband of the underwear and crotch of the shorts. Oral Richards was excluded as the individual who deposited semen on those areas. Ms. Dziak testified if there was ejaculation of semen inside the vagina it could last for up to 12 days and would be coming out by drainage. If underwear and shorts were worn for three hours after ejaculation then Ms. Dziak testified she would expect transfer of that semen onto underwear and shorts. Oral Richards testified he did not attempt intercourse with G.T. because he had consumed too much alcohol and could not get an erection. Mr. Richards testified he did not penetrate G.T.’s vagina at any time they were making out. He testified he did not ejaculate. Mr. Barrison submitted the DNA evidence was not consistent with G.T.’s version of the events; however, Mr. Richards’ evidence is consistent with the DNA forensic evidence.
56Mr. Barrison in reply submitted the Crown’s submission that the DNA from the shorts, if they had been worn previously when G.T. had intercourse as she testified with her boyfriend could have been transferred to G.T.’s external genitalia is not possible based on the evidence of Ms. Dziak.
57It is interesting as well that G.T.’s initial position in chief and with Mr. Barrison was that Mr. Richards’ penis was erect when they first were in the bathroom. However, she then agreed she did not know whether he did or didn’t have an erection but added she would disagree he didn’t. This is another example of G.T. being inconsistent in her evidence.
58Mr. Richards testified there was no express verbal consent from G.T. for the sexual activity they engaged in but she was indicating consent through her actions of kissing him back, not pushing him away or telling him to stop.
59The text message screen shot, Exhibit 7, was never shown to G.T. for her to identify. Further, Mr. Richards was not cross-examined by the Crown as to what he meant by his text at 4:47 a.m. or the earlier text at 3:36 a.m. Ms. Portolese’s cross-examination focused one fact she alleged Mr. Richards did not tell the truth when he testified he thought he sent a text a couple of days later and that this adversely affected his credibility and reliability. I did not draw that inference particularly because I took his answer to be that he did send a text and thought it was a couple of days later but then when he was shown Exhibit 7 he conceded he was mistaken on when he sent it.
60I take a similar view of Mr. Richards’ statement to D.C. Willis where he tells the officer his recollection of what had occurred between him and this young woman was” very vague” at that time. He had just been charged and was being asked questions about his interactions with G.T. from 3 months before. As he said to D.C. Willis he needed to sit down and really think about everything that had occurred between them. He also repeatedly said to the officer that his lawyer had told him not to answer questions and he really wanted to speak to his lawyer before he said anything in answer to the officer’s questions. His position as to the allegation of sexual assault were very clear, he did nothing wrong, it was B.S. and it would be decided in court with his lawyer. In my view I do not draw the adverse inferences sought by the Crown.
61Ms. Portolese also pointed to G.T.’s demeanour when she spoke to S.W. and asked her to request Mr. Richards and his friends leave. S.W. testified G.T. did not tell her anything about what happened just she wanted them to be asked to leave and it was not until later, the next day when G.T. alleged a sexual assault. G.T. testified she told S.W. she had been raped by Mr. Richards. According to S.W., G.T. did tell her the next day after they all woke up. Mr. Barrison submitted there was an alternative explanation for G.T.’s upset, which G.T. denied, but that she was upset because she had just renewed her relationship with her boyfriend, Mr. F. and she was upset because of what she had done with Mr. Richards consensually. Considering some of the inconsistencies I have described and occasions when G.T. was attempting to minimize her consumption of alcohol or attempting to portray that she had no interest in Mr. Richards and he was the aggressor in terms of the dancing and asking for her phone number, it is my view the defence theory is a possibility. The significant gaps in G.T.’s evidence also support this theory.
62At the end of the day, after considering the totality of the evidence, in particular the DNA evidence, which I find, based on the evidence, is completely inconsistent with G.T.'s version of what took place in the bathroom and in the laundry room, I am left with serious doubts concerning whether G.T. consented to the sexual activity or that Mr. Richards knew she was not consenting or that he was wilfully blind or reckless as to whether she was consenting. It is my view on the totality of the evidence the Crown has not proven these two essential elements of the charge of sexual assault facing Mr. Richards and as a result the charge is dismissed.
Released: February 18, 2022 Signed: Justice Peter C. West