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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
DATE: December 18, 2024 Information No.: 4810-998-23-48106563-00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
MILLER HISCOCK
Reasons for Judgment
BEFORE THE HONOURABLE JUSTICE B. BROWN
On December 18, 2024, at TORONTO, Ontario
APPEARANCES: M. Yousuf Counsel for the Crown F. Fairney Counsel for Miller Hiscock
BROWN J.: (Orally)
Mr. Miller Hiscock stands charged with sexual assault on Ms. A.B.D. on March 18th, 2023, contrary to section 271 of the Criminal Code. The Crown proceeded summarily. The Court made an order banning publication of the name of the complainant or any information which could identify her, pursuant to section 486.4 of the Criminal Code. The Crown called one witness, the complainant, Ms. A.B.D. and the defence called one witness, Mr. Hiscock.
Although the complainant consumed seven alcoholic drinks, there was no issue in this trial as to whether the complainant was so impaired by alcohol, that she was unable to consent to having sexual intercourse. This case had one contested issue, whether Mr. Hiscock had sexual intercourse with the complainant without a condom, and if so, if the complainant either stated she did not consent to such intercourse without a condom or had withheld consent to sexual intercourse without a condom, in light of her concern regarding ejaculation inside her. Most of the evidence in this case was uncontested.
Uncontested Evidence
At the time of the allegations, the complainant was a student at a college in Toronto, and she lived in a dormitory or a residence on campus with her female roommate.
On March 17th, 2023, it was St. Patrick's Day. In the evening and into the following morning, the complainant and defendant met in a bar in Toronto called Escobar. Both consumed a notable amount of alcohol that night. The complainant consumed four vodka iced teas at her dormitory, starting at 6:00 p.m. and she ended consuming those drinks before leaving at 11:00 p.m. She was feeling tipsy but fine when she left her residence. She did not get downtown until 11:00 p.m. She then went to one bar with her friend and waited in a line to enter the bar before deciding to go to Escobar, arriving there around midnight.
At Escobar, the complainant went with her female friend and they ran into a male friend there. The complainant then had two tequila shots. She went to the bar for another tequila. When the complainant was on the dance floor, she saw Mr. Hiscock in that area. He started dancing with her and they were together for a while. As she was in line to go into the bathroom for the bar, some girls walked up to her and told her they were not trying to take her man, but they were trying to get a line of coke from Mr. Miller. The complainant responded no worries, he was not her man, she had just met him. She saw Mr. Hiscock briefly before he went to see the girls. Mr. Hiscock came back and found the complainant as he said he would do.
Eventually, the complainant and her friend were tired, it was around two o'clock. The complainant and defendant, Mr. Hiscock, left the bar and waited outside together with the female friend of the complainant and the male she had met at the bar, but they had difficulty in getting an Uber. The complainant's friend went to the male's residence and at around 2:30 a.m., the complainant, Ms. A.B.D., and Mr. Hiscock decided to go to the complainant's residence in a taxicab. They eventually obtained a taxi, which took them to her residence.
At about 2:30 a.m., Mr. Hiscock was whispering the things he wanted to do to the complainant when they got to her residence. He was excited to have oral sex with her. He whispered that he wanted to start doing things in the cab and the complainant said she wanted to wait until they got to the residence. Mr. Hiscock paid for the cab. It was 2:30 to 2:45 a.m.
At this point, the complainant had consumed seven alcoholic beverages, and she was feeling "pretty good". A normal amount of alcohol had been consumed by her to that point. She indicated she caps herself at eight drinks. She indicated she felt functional. She indicated she was drunk, but not incoherently drunk. She also testified that she had consumed marijuana that night; two tokes, two bong rips. Around this time, she would consume marijuana on weekends socially with her friends.
Although the complainant did not see how much alcohol was consumed by Mr. Hiscock, she testified that he was stumbling as he walked. She did not have any trouble talking or walking. They arrived at the door of the residence building at approximately 3:00 a.m. The complainant had to sign in the defendant due to residence security measures. They took the elevators to the floor of the complainant's room and then went to her room. There was no one in the room at the time.
The complainant agreed that she and Mr. Hiscock did not have any discussion about birth control or contraceptives before having sex. Shortly after they were in her room, they started to "make out". Then they transitioned to her bed and Mr. Hiscock had oral sex with the complainant. The complainant used a far more graphic term for that act, which the Court is not going to repeat in the reasons for judgment. They did this for seven to ten minutes. At the time, there was limited indirect lighting from elsewhere in the residence apartment, if I can call it that, and there was a beside light in her room which shone down to the floor from the bedside table.
The two parties then got in position with the complainant laying down on her back and Mr. Hiscock laying down on top of her. The complainant testified that she then removed her bra. The complainant testified that they had no discussion about whether Mr. Hiscock would be wearing a condom before they started to have sexual intercourse. The complainant testified that she felt the cooling sensation of a condom while they were in the missionary position having sexual intercourse. At that point, they switched positions, and the complainant was lying on her stomach as Mr. Miller was on top of her from behind and he was still inside her. She then said she switched to the doggy position, and he was still inside her. She testified that at this point, she did not feel the cooling sensation from the condom. They were in this position for approximately ten minutes or maybe a little less. She testified that it was not a concern at the time. He told her that he was close and then she was about to finish, to climax, to orgasm at the same time. Then he had three final thrusts, and she indicated that they both collapsed into each other and stopped. They both finished at the same time with an orgasm.
At that point, the complainant indicated she did not feel any of the ejaculate on top of her body, so she asked where he came, and he said he "finished" inside her, that she "finished" and he "finished." She did not see a condom anywhere at this point. There was no condom on his penis. She did not know what to do and she said it is okay, whatever. They then cuddled with each other. There was then discussion between the two of them about how they were going to have some cute babies with amazing genes. They were going to be athletes, and their future kids would look really pretty. That is what was stated by Mr. Hiscock.
Mr. Hiscock told the complainant he would send her money for a Plan B tomorrow. He had to go to work the next day, so he got up and he grabbed his clothes. He ordered an Uber and the two walked out to where he caught the Uber.
When she went back to her room, it was almost 5:00 a.m. The complainant testified she was annoyed that she had to go to bed with ejaculate on her sheets. It is not clear, this Court would note, why she would think or say that given her evidence that he ejaculated inside her.
The following day, the complainant purchased the Plan B, and it was delivered from the pharmacy in an Uber. She paid for it and signed off for it. A few hours later, Mr. Hiscock sent her money for the Plan B. He asked her later if she had taken the Plan B. In the meantime, the complainant and her friend had filmed the complainant taking the Plan B and had taped accompanying music for this. She then sent that videotape to Mr. Hiscock. That videotape was agreed to be admissible after the complainant had, prior to trial, received independent legal advice. The Court would note that it was a particularly odd video clip in terms of the music and the presentation of the complainant at the time. It seemed like it was a joke, but the complainant seemed unwilling to admit she did it as a joke even though the music she chose for the backdrop of taking the Plan B seemed to be very odd.
Sometime later, the complainant testified she told her friends what had happened. She testified one friend told her that because he went inside her, even though she had told him not to do that, that it was a form of sexual assault. At that point, she testified she felt upset and violated. After she spoke with this friend, she spoke to her residence coordinator. The police were contacted afterwards. She went to the doctor to have STI tests and took a pregnancy test to make sure that the Plan B had worked.
Analysis
The defendant, Mr. Hiscock, is presumed to be innocent. The Crown must prove his guilt beyond a reasonable doubt. The defendant has no burden to prove anything, to explain anything, or to persuade the Court of anything. The principle of reasonable doubt also applies to the issue of credibility. The assessment of credibility is not a matter of choosing between competing versions or determining which is more credible or to be preferred. Where the defendant has testified or called evidence from other defence witnesses, or where exculpatory evidence has been elicited from other witnesses in the trial, that evidence is entitled to the benefit of the application of reasonable doubt in the assessment of its credibility and the fact finding that follows.
If that evidence is believed and it affords a defence, the defendant is entitled to an acquittal. Even if that evidence is not believed in the sense of believing it to be true, if it nonetheless raises a reasonable doubt, the defendant is entitled to that doubt and an acquittal will follow. Even if that evidence is rejected, the Crown must still prove guilt beyond a reasonable doubt based on all of the evidence in the trial. There is no legal requirement that the evidence of a complainant be corroborated, that is to say be supported by other independent evidence.
A determination of guilt or innocence must not turn into a credibility contest between two witnesses or a bipolar choice between competing evidence called by the Crown and by the defence. This approach would erode the presumption of innocence and the burden on the Crown which remains of proving guilt beyond a reasonable doubt. In the often quoted reasons of the Supreme Court of Canada in R. v. W.(D.), (1991), 63 C.C.C. (3d) 397, the Court suggested an appropriate jury instruction for the consideration of evidence in the trial which this Court finds is appropriately captured as follows:
1If you believe the evidence of the accused and it affords a defence, obviously, you must acquit.
2If you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
3Even 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, and on the basis of all of the evidence in trial, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
In this case, the Court starts with an assessment of the evidence of Mr. Hiscock.
Consideration of Defendant's Evidence
Mr. Hiscock was 22 years of age and living in Toronto and working at the relevant time. He had studied marketing in college, but he had not finished that degree.
On the night of the allegations, he drank three light beers and two vodka sodas. At Escobar, he consumed one more vodka soda and two Red Bulls. He did not do any drugs. He had no experience taking or dealing cocaine. He ate pizza and other food on the night of the allegations.
At Escobar, after he had been dancing with the complainant, he testified that girls approached him asking for cocaine. He told them he did not have any cocaine. He gestured to the girls to the washroom, and he assumed that they went there to get cocaine from that area.
His evidence in terms of the sexual acts in the complainant's bedroom was relatively consistent with her evidence on most points. However, he maintained that he was not wearing a condom whatsoever. He maintained throughout his testimony that he and the complainant never had any discussion about whether he should wear a condom. That is important as the complainant is consistent in that regard also. The complainant had differed in terms of her testimony that she did not want him to ejaculate inside her.
The evidence of Mr. Hiscock was that they did not discuss whether he would ejaculate inside her or outside of her. There was simply no discussion of where ejaculation would take place according to the evidence of Mr. Hiscock. The evidence of Mr. Hiscock is that ejaculation was only discussed after it had happened.
Mr. Hiscock testified that he was feeling very excited that he was going to be having sexual intercourse with the complainant on the night of the allegations. During the events, on her bed in her room, at one point, he shifted his energy and focus to ensure that the complainant would climax. It was not until after she climaxed that he realized that he had come inside her. He did not specifically remember having an orgasm. He testified that he was intoxicated. He had just been focusing on trying to get her to orgasm. However, he did not make any effort to prevent his orgasm or to pull his penis out of her vagina.
He testified he did not have a condom with him whatsoever that night. He showed his wallet to the Court, which clearly did not have a place to hold a condom as it could only hold credit cards, and it held them tightly in position. The Court reviewed this wallet in court.
Overall, Mr. Hiscock volunteered in his testimony that after he had ejaculated inside the complainant and they were cuddling, it was quite awkward. He felt fairly uncomfortable. He felt irresponsible for that having happened. He wanted to lighten the mood, so he made a joke that at least their kids would have good genes or would look good to lighten the awkwardness that he was feeling. He explained that having unprotected sex with a stranger and ejaculating inside her did not leave him feeling morally great. He testified he had never been in that position before. The Court found that aspect of his evidence to be quite genuine.
Mr. Hiscock maintained that he never said you cannot have my children. He had no intent to impregnate the complainant, and he did not have a fetish about ejaculating inside people as had been referred to by the complainant in her testimony.
At the time, he felt he could not have controlled himself to prevent ejaculation if his penis remained inside the complainant. He was not thinking about that at the time, as he was so focused on the fact that she was about to climax, and he testified that does not usually happen with girls on a one-night stand. He indicated he wanted to focus on her orgasm, and he did not think about himself.
The complainant had some marijuana afterwards and offered some to Mr. Hiscock, which he declined because he had to go to work in the morning. She had suggested that he stay over but he told her he had to work, and it was not a great idea. He felt overwhelmed by the whole situation; of dealing the next day with the ejaculation that had happened and the Plan B. He had heard of Plan B, but he had never had to use it before when having sex.
When Mr. Hiscock woke up the next day, he realized what they had done was irresponsible. He felt a little disappointed with himself for being so reckless. He had general anxiety about her getting pregnant; it was lingering for him.
He agreed that a few days later, after he had sent her the money for the Plan B and she had sent him the video about taking the Plan B, that there was a break in communication. He agreed that she had said in a text message to him that she was hot enough to nut in but not hot enough to text her.
He felt that he was not dealing with the situation in a mature way by "ghosting" her, and by not communicating back to her. He thought he had been irresponsible, and he just wanted to put the whole situation behind him.
Overall, he testified that he had a good evening with the complainant up to the point where he had ejaculated. The Court is using an expression that was used in testimony even though it is ironic. He indicated that that left a bad taste in his mouth because he had been irresponsible about the situation. He thought that if it had not happened, he probably would have continued to see the complainant for some period of time.
Overall, the Court found the testimony of Mr. Hiscock to be very credible. There were no inconsistencies. He was internally consistent in his evidence. His evidence made sense, and it was very believable. Although he had consumed alcohol, he had not consumed any drugs that night unlike the complainant. He had consumed an amount of alcohol similar to the complainant and similar to the usual consumption of alcohol he had done in the past. The Court accepts his evidence, and it affords a defence to the charge of sexual assault.
The Court finds that the complainant consented to acts of oral sexual and vaginal sexual intercourse. The Court finds that the consent was not conditional on a requirement that he use a condom, as the Court finds that the two parties had no prior discussion about using a condom or not, prior to having sexual relations. The Court also found that the two parties, and most particularly the complainant, said nothing about where he could ejaculate before the conclusion of sexual intercourse.
The Court finds that the first discussion about where he could or should have ejaculated was after he had already ejaculated inside her vagina. The Court finds that all the sexual activity between the complainant and the defendant was consented to by the complainant.
The Court has, however, also considered the evidence of the complainant and will discuss that at this point.
Consideration of the Complainant's Evidence
There were some key differences in the testimony of the complainant and Mr. Hiscock. For example, the complainant testified, and the defendant maintained the following did not happen. The complainant testified that just before they had vaginal sexual intercourse, Mr. Hiscock put on a condom. She testified she did not know where he got it from, but he unwrapped it. She testified he was wearing the condom, and they were both naked. She testified they started having vaginal sexual intercourse in the missionary position. She testified that he was having trouble with the condom in that position, and they switched positions. She testified that the condom was sliding off. She testified she felt a cold sensation from the lube of the condom. She testified he was getting frustrated as he paused between thrusts and that he was adjusting the condom, trying to roll it back down. The complainant testified that Mr. Hiscock said he wanted to come inside her, meaning to ejaculate inside her, and she said no. She testified she said he could come on her stomach, on her back or on her boobs, but not inside her. She testified she interpreted his request as he wanted to come inside her without a protective barrier of a condom. She testified that he responded to her comments by saying "okay, okay". This evidence was not consistent with Mr. Hiscock's version of events.
The Court will consider the credibility and reliability of the complainant's testimony generally before making the overall final findings of fact.
The Court had areas of concern with respect to the credibility of the complainant. For example, the complainant testified in examination-in-chief that Miller, as she had often referred to him by his first name, had come over to her and said he was just going to sell the girls a line of coke, and then he would be back and find her afterwards. That was in the Escobar club.
However, she contradicted herself in this regard. Previously, in her first police statement, she testified that Mr. Miller said he was going to give a bump to the girls in the bathroom. She agreed in testimony in cross-examination that he did not say he was going to sell cocaine to the girls, as she had previously stated in examination-in-chief. She agreed that she never saw Mr. Miller with any cocaine that night. She agreed that by her use of the word sell, that her evidence made it look like Mr. Hiscock was a drug dealer. She never had any other discussion with him about cocaine. She agreed that she never saw or heard the girls speak with Mr. Hiscock about getting cocaine.
Even though the complainant admitted that she did not hear any exchange between the girls and Mr. Hiscock, she maintained that Mr. Hiscock did not tell the girls he did not have any coke. It is odd and very problematic that she would maintain that position in her evidence given that she did not even hear the exchange. How could she say what had not happened if she heard nothing? It did seem to the Court that she wanted to portray Mr. Hiscock in a negative light as it related to the girls and the cocaine.
The complainant also contradicted herself comparing her examination-in-chief and her statement to the police. In the statement, she indicated she told Mr. Hiscock not to come inside her because she was not on birth control contraceptives. However, in her evidence at trial, she indicated that she did not want him to come or ejaculate inside her and that she made no mention of whether she was on birth control or not. This is another significant inconsistency as it relates to the complainant's fear of getting pregnant. She maintained that the statement was wrong, that her testimony in that regard was right.
Another concern in her testimony related to whether she thought the condom had come off between the time she felt a cold sensation, which is when they were in the missionary position, and when she no longer felt that sensation in the doggy position. She testified that she did not think the condom had come off. Then later in cross-examination, she admitted that she had thought the condom had come off. So she contradicted herself in cross-examination. Then she said she was unaware that the condom was off until the end. So she contradicted herself again on this key piece of evidence. Later, she testified there was a point that she thought the condom was off, again, contradicting herself.
As a more somewhat minor inconsistency in cross-examination, the complainant testified that it was the idea of Mr. Hiscock for her to take the Plan B. She then testified he said"You cannot have my babies. I will send you money for a Plan B tomorrow." Which is somewhat different than her earlier testimony that seemed more like joking about how they would have cute children together.
She testified in examination-in-chief she did not see where Mr. Hiscock got the condom from prior to removing it from the package and putting it on his penis. Then in cross-examination, she very clearly maintained that he got the condom from his pocket in his wallet. The Court questions how she can maintain this later when she previously said she did not see where it came from.
In the context of something that was not an inconsistency, it was odd that the complainant never mentioned in any of her statements or examination-in-chief that she had searched her room for evidence of a condom and a condom wrapper after Mr. Hiscock had left her room. In cross-examination, she mentioned for the first time that she looked for the condom and found it in the bathroom. She mentioned she covered it up so that her roommate would not see it but that she eventually threw it out.
The Court was also taken back by the way in which the complainant answered questions late in her cross-examination. She seemed to shut down after various inconsistencies had been pointed out by answering long questions with one-word answers such as"Unsure." And on more rare occasions"Potentially" without any elaboration. The answers were stunted, and unlike her previous testimony which was more flowing and conversational and more natural in giving answers to questions. She maintained that stance in response to quite a few questions in cross-examination and it appeared to the Court that she did not want to answer those questions.
She contradicted herself again as to whether Mr. Hiscock had required proof that she had taken the Plan B. That was not the case in examination-in-chief, but in cross-examination, she stated she was unsure, she did not remember.
She also seemed fixated on the thought that Mr. Hiscock had what she thought was a "breeding fetish" even though she testified he said she could not have his kids. That did not make sense, the Court would find.
Then at one point after the events and after Mr. Hiscock sent her money for the Plan B, she denied that her feelings were hurt when he no longer communicated with her. She denied being upset over this, although her words spoke a different feeling. She made a big point of saying that she was hot enough to nut in and not hot enough to text back. It really reflected her words of being very upset with him as the Court saw her give that testimony numerous times in the trial.
The Court has notable and significant concerns related to the complainant's credibility and reliability as set out above. As set out above, the Court believes the version of events given by Mr. Hiscock and disbelieves the version of events where it is not corroborated or confirmed by the testimony of Mr. Hiscock.
Summary
It is clear on the uncontroverted evidence that the complainant and defendant engaged in consensual oral sex and vaginal intercourse. There was no discussion as to using a condom or using any form of birth control. The two virtually started having sex moments after they arrived in the complainant's bedroom, and they were both very excited and engaged in the acts. There was not a lot of conversation, this Court would find, in the midst of very involved sexual acts that they were engaged in performing at the time. The Court finds that Mr. Hiscock was very focused late in the acts on trying to make the complainant orgasm when he saw how much she was enjoying what he was doing, and she was coming close to an orgasm. He was not wearing a condom at that point in time or at any point in time when he had vaginal sexual intercourse with her.
This was not a case where the consent by the complainant for vaginal intercourse was tied to an agreement that he wear a condom. They had no discussion about his wearing a condom before having sex. They also had no conversation or discussion about him having vaginal intercourse and where he would ejaculate. And the actions of the complainant in various positions were consistent with her consent that he place his penis inside her vagina. There was no conditional consent from the complainant that they have vaginal sexual intercourse but only if he did not ejaculate inside her vagina.
The Court finds that she consented to vaginal sexual intercourse without any conditions tied to the location of ejaculation or the presence or absence of a condom. If anything, the Court finds that the complainant was silent as to what was happening with him and where he would ejaculate. The Court accepts the evidence of Mr. Hiscock in that regard. The Court finds that the complainant said nothing about the location of ejaculation. To use the street expression, the Court finds that things were going so "hot and heavy", that there was no break, this Court would find, for stopping to have a discussion about the mechanics of where bodily fluids would end up. The two parties were captivated and on a roll pursing ultimate pleasure and enjoyment. Moreover, the Court finds that the two parties were so involved in their pursuit of pleasure, Mr. Hiscock, in trying to pleasure the complainant, and the complainant in pursuing her orgasm, that there was no pause for consideration as to where his ejaculate might go or whether he should withdraw his penis before he ejaculated.
In the end, the Court finds that Mr. Hiscock did not have physical control of when or where he ejaculated. Despite what he would have wanted, had he paused to consider how to act responsibly in this one-night stand, particularly where he was not wearing a condom and thereby should have withdrawn his penis before there was a chance of ejaculation in her vagina, he just lost sight of what was happening with him. Before he knew it, he had ejaculated inside the complainant. And after the fact, the Court finds the complainant realized that this was problematic. Although she had an orgasm, she had just said "whatever."
The parties knew at that point that they could deal with the situation the next day by purchasing a Plan B to prevent a pregnancy. But that does not change what happened. The Court finds that this was a consensual series of sexual acts and the fact that the defendant ultimately and by accident had non-intentionally ejaculated inside the complainant, in the circumstances of this case, does not make this a sexual assault. It was consensual sex; it was not a sexual assault.