Her Majesty the Queen v. Kenneth Ignacio, 2019 ONSC 1511

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Ignacio, 2019 ONSC 1511

COURT FILE NO. CR-18-30000083-0000

DATE: 20190307

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KENNETH IGNACIO

A. Kocula, for the Crown

R. Luccisano, for Mr. Ignacio

HEARD: March 4-5, 2019

REASONS FOR JUDGMENT

SCHRECK J.:

1Kenneth Ignacio is charged with a single count of sexual assault, which he is alleged to have committed on May 1, 2017 in relation to S.H., a woman he had met a few days earlier. As is often the case, Mr. Ignacio and S.H. are the only witnesses with firsthand knowledge of the events in question and have given diametrically opposed accounts of what transpired.

I. EVIDENCE

A. Overview

2Mr. Ignacio and the complainant, S.H., both testified about the events of the night on which the offence was alleged to have taken place. They agreed with respect to much of the narrative, including how they met, how they came to be together that night, and how they became to be involved in sexual activity. They agreed as well that the initial sexual contact between them, which involved touching and oral sex, was consensual. They also agreed that this initial contact was followed by sexual intercourse. Where they disagreed is whether the sexual intercourse took place with S.H.’s consent.

B. The Barbecue

3Mr. Ignacio and S.H. who are both in their early 20s, met at a concert at the end of April, 2017. They took a liking to each other and exchanged “flirty” text messages over the next few days. On April 30, 2017, S.H. was invited to a barbecue at the home of Mr. Ignacio’s cousins in Scarborough. She initially did not want to go and made an excuse about having a sick relative. However, she later changed her mind.

4S.H. drove to the barbecue in her car and arrived there at around 11:00 p.m. Mr. Ignacio was already there. S.H. testified that he was very intoxicated. Mr. Ignacio agreed. He had been “binge drinking” and had consumed a lot of alcohol, although he could not say how much. He agreed in cross-examination that he was intoxicated “to the point of blacking out” and that he could only recall “bits and pieces” of the evening.

5When it was time to leave the barbecue about an hour and a half later, S.H. offered to drive Mr. Ignacio home. She had consumed very little alcohol and was sober. He accepted the offer.

C. The Drive

6Both witnesses agreed that they kissed in the car as S.H. was driving Mr. Ignacio home. J.H. testified that he insisted on giving her a kiss each time they stopped at a red light and she agreed to do so the third time they stopped. Mr. Ignacio testified that they kissed at each red light.

7The witnesses also agreed that at some point, S.H. drove onto Highway 401 and that after she did so, they agreed to get off at an exit and park the car. According to S.H., Mr. Ignacio asked her to pull over so that they could talk and so that he could sober up. According to Mr. Ignacio, he had jokingly mentioned that kissing in the car might result in an accident and S.H. then told him that she knew of a place they could go.

8S.H. took the Markham Street exit and then stopped the car in the parking lot of a Holiday Inn. S.H. was familiar with this area because her friend lived nearby, but she maintained that this was simply a coincidence and not the reason why she stopped there.

D. The Initial Sexual Contact

9After the car was parked. Mr. Ignacio moved to the back seat and then asked S.H. to join him there. She testified that she agreed to do so, but before entering the back seat told him they would only kiss and do nothing else and she wanted him to understand that she would not have sex with him. Mr. Ignacio testified that they had begun “making out” in the front seats and moved to the back seat together and at the same time because it was more comfortable. He denied that she had said anything about not having sex with him before getting into the back seat.

10Once both of them were in the back seat, they began to kiss. Mr. Ignacio put his hand up her shirt and under her bra, and then started to unbutton her pants. According to S.H., she told him to stop, but he replied that he would make her feel good. He then removed her pants. S.H. said he did so without any assistance from her. Mr. Ignacio said that she arched her back to facilitate the removal of her pants.

11It is common ground that Mr. Ignacio began to perform oral sex on S.H. According to her, he did so for about three minutes. He then stopped and pulled his own pants down, exposing his penis. S.H. testified that he said “Are you really not going to ….”, but did not finish the sentence. She took this to mean that he wished her to perform fellatio on him, which she did. S.H. acknowledged that up to this point, she had consented to all of the sexual contact, including the fellatio.

12Both witnesses agreed that after S.H. performed fellatio on Mr. Ignacio for a while, he told her that it was “not working” and that he wanted to have sex, by which he meant sexual intercourse.

E. Sexual Intercourse

(i) The Complainant’s Account

13According to S.H., when Mr. Ignacio said that he wanted to have sex, she told him that they were not going to have sex and that things had “already gone too far”. He tried to convince her by promising that he would not “come inside her”. She replied “I am not having sex with you, not now, not tonight, not ever”.

14At this point, S.H. was sitting with her back to the car door and her legs in front of her. She testified that Mr. Ignacio pulled her towards him by grabbing her knees, which caused her head to hit the arm rest on the door. Mr. Ignacio then began to forcefully penetrate her vagina with his penis, causing her pain. She told him to stop and hit him on the chest. He reacted by grabbing her hands and pushing them down beside her. S.H. described it being “like he wasn’t even there”. At this point, S.H. stopped resisting because she was “just waiting for it to end”. Mr. Ignacio ejaculated inside her and then got up.

15S.H., who was crying by this time, got dressed and told Mr. Ignacio that he had to leave. She moved to the front seat. Mr. Ignacio sat down next to her and said “S., you didn’t really want that. I raped you.” Using her mobile phone, S.H. began to search for an all-night pharmacy so that she could purchase a “morning after pill”. Mr. Ignacio insisted on coming with her and said that he did not want to leave her alone. She agreed because she was scared that things would get worse otherwise.

(ii) Mr. Ignacio’s Account

16Mr. Ignacio testified that after S.H. performed fellatio on him, he said “Can we just like do it?” or words to that effect, meaning that he wished to have sexual intercourse. According to him, she responded by saying “Don’t ejaculate inside me”. Later, he testified that she said “Yes, but just don’t ejaculate”. He agreed not to ejaculate. He then pulled her forward and vaginally penetrated her. After a few seconds, he ejaculated unintentionally and unexpectedly. He did not have time to withdraw before doing so. He denied that S.H. ever said anything to indicate that she did not consent to having sexual intercourse.

17Mr. Ignacio told S.H. that he had ejaculated inside her and she “freaked out”. He agreed that she was crying at this point. She told him that she was not taking contraceptive pills and he was “horrified” to learn this. S.H. began to look for a pharmacy on her phone. At some point, she got dressed but he could not recall if this was before or after she searched for the location of a pharmacy.

F. The Events Following the Sexual Activity

18S.H. drove to a pharmacy and go out of the car. Mr. Ignacio followed. According to him, he did so at her request. She went into the pharmacy, purchased the contraceptive, and then went into the bathroom to compose herself. She and Mr. Ignacio then returned to the car, where S.H. took the pill she had purchased. He asked her to drop him off at any intersection, which she did. According to Mr. Ignacio, he asked her to drop him off near his home, which was at Kennedy Road and Highway 401, and she did so. He said before leaving the car, he gave her a hug and said that he was sorry for ejaculating inside her.

19While driving home, S.H. tried to call several of her friends, but nobody answered. She finally reached a friend, C., and told her what happened, although she did not tell her all of the details. She asked C. to stay on the phone with her until she got home. S.H.’s phone records show that she made a 16-minute phone call at 4:06 a.m. on May 1, 2017.

G. The Complainant’s Activities the Following Day

20The following day, S.H. went to her place of employment, which was a restaurant, although she was not scheduled to work. She spoke to her manager, A.T., who was a close friend of hers, and told her what had happened. She asked A. to accompany her to the hospital. At the hospital, S.H. underwent a “rape kit” examination. She later contacted the police.

21A.T. also testified and confirmed that she accompanied S.H. to the hospital. According to her, when S.H. arrived at the restaurant that day, she looked dishevelled, had obviously been crying, and was pale. On the way to the hospital, S.H. was upset, crying and “shaky”. She would calm down from time to time, only to start crying again.

H. The Text Messages

22It is common ground that at 2:43 p.m. on May 1, 2017, Mr. Ignacio sent two text messages to S.H. The first read “Hey just woke up. How are you? I hope everything’s fine with you”. It was immediately followed by a message saying “I’m truly sorry for last night”. According to Mr. Ignacio, he was apologizing for having ejaculated inside S.H. S.H. did not respond to the text messages.

II. ANALYSIS

A. Overview

23As is often the case in matters of this nature, only two people are able to give direct evidence about what transpired and a determination of the case requires the trier of fact to assess the credibility and reliability of their evidence. Both S.H. and Mr. Ignacio agreed that there was consensual touching and mutual oral sex. They both agreed that this was followed by sexual intercourse, but disagree as to whether it was consensual.

24On S.H.’s account, Mr. Ignacio forcibly had sexual intercourse with her after she clearly and repeatedly told him that she did not consent. There is no issue that on this account, he is guilty of the offence he is charged with. On Mr. Ignacio’s version of events, after S.H. performed fellatio on him, he asked her if they could have sexual intercourse and she expressly agreed as long as he did not ejaculate inside her. They then had intercourse, but he unintentionally ejaculated inside her. On Mr. Ignacio’s account, he is not guilty of the offence. I do not understand Crown counsel to suggest otherwise.

B. The Correct Application of the Burden of Proof

25The correct approach to take in cases like this has been expressed in various ways. One well-known articulation is that set out in R. v. W.(D.)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 28. The trier of fact should first determine whether he or she believes the accused’s version of events. If so, he is entitled to an acquittal. If not, the trier of fact should consider whether the accused’s version of events, although not believed, raises a reasonable doubt. If so, he is again entitled to an acquittal. If not, the trier of fact must consider whether the remaining evidence proves the accused’s guilt beyond a reasonable doubt. Then, and only then, can there be a conviction.

26A trier of fact is not required to consider the evidence in the order set out in W.(D.): R. v. J.M., 2018 ONSC 344, at paras. 4-20. Indeed, some have criticized the W.(D.) approach: R. v. Ryon, 2019 ABCA 36, at paras. 20-54. Whether or not the evidence is considered in accordance with the approach in W.(D.), the important points which must be kept in mind are that the burden of proving the charge beyond a reasonable doubt remains on the Crown and never shifts, that it is open to a trier of fact to conclude that he or she is unable to decide which version of events to believe, and that rejection of the defence evidence does not automatically lead to a conviction.

27As is clear from the foregoing discussion, if I believe Mr. Ignacio’s evidence or if I am unable to decide whether I believe his evidence, he is entitled to an acquittal.

C. Mr. Ignacio’s Evidence

28English is not Mr. Ignacio’s first language, and I have kept that in mind when assessing his testimony.

29The central difficulty with Mr. Ignacio’s evidence is that he was heavily intoxicated at the time of the events he is testifying about. By his own admission, he had been binge drinking and was intoxicated to the point that he was blacking out. He agreed in his evidence that he could only recall “bits and pieces” of the evening. As I will explain, this affects both the reliability and the credibility of his evidence.

30The intoxication affects the reliability of Mr. Ignacio’s evidence because intoxication by alcohol affects one’s ability to perceive and recall events. This is particularly so where, as in this case, the intoxication is so severe that the individual is blacking out.

31The intoxication also affects the credibility of Mr. Ignacio’s evidence. Despite acknowledging the extent of his intoxication, he purports to remember every detail of his sexual interaction with S.H., including what was said and when it was said. As a matter of human experience, somebody who is as significantly intoxicated as Mr. Ignacio admits to being would not be able to recall events in such detail. His claim that he is able to do so is not credible and shows that he is willing to “fill in blanks” in his testimony when necessary. This affect all of his testimony.

32For these reasons, I cannot accept Mr. Ignacio’s evidence, nor does it raise a reasonable doubt.

D. S.H.’s Evidence

33This, of course, does not end the matter. I must still consider whether I accept other evidence and whether that evidence proves the charge beyond a reasonable doubt. As noted earlier, the only direct evidence of the offence was the testimony of S.H.

34S.H.’s evidence was plausible and consistent. She was not prone to exaggeration. For example, during her evidence in-chief, she described being somewhat reluctant to allow Mr. Ignacio to perform oral sex on her or to perform oral sex on him. Despite this, during cross-examination she readily acknowledged that despite her reluctance, this sexual activity was consensual.

35I note as well that S.H. had no motive to falsely accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to get to know him better. In making this observation, I am mindful that the burden of proof is on the Crown and that there is therefore no obligation on an accused to demonstrate why a witness would testify falsely: R. v. Krack (1990), 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.), at pp. 561-562. Nonetheless, this is a factor to consider: R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at para. 4; R. v. Plews, 2010 ONSC 5653, at para. 335. I recognize that the defence has alleged a motive to fabricate that is related to S.H.’s fear of having become pregnant, an issue I will address later in these reasons.

36I have also considered the testimony of A.T. about S.H.’s emotional state the following day. According to her, S.H. was extremely upset and continued to be for an extended period of time. In my view, this supports S.H.’s testimony: R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33.

E. The Alleged Motive to Fabricate

37It was submitted on behalf of Mr. Ignacio that S.H. had a motive to fabricate a sexual assault because she was afraid that she had become pregnant as a result of Mr. Ignacio ejaculating inside her and needed to explain any pregnancy to her parents in such a way as to absolve herself of having any responsibility for the situation. It was also submitted that this fear of pregnancy explains why S.H. was so upset the following day. In my view, the problem with this theory is that S.H. had the wherewithal to obtain a “morning after” pill immediately after Mr. Ignacio ejaculated inside her. She took the pill and there is no suggestion that she had any reason to think that it would not work. She had no real reason to believe that she was pregnant. Even if she had such a fear, it is difficult to understand why she would subject herself to a “rape kit” examination the following day. If she was worried about being pregnant, surely undergoing a pregnancy test would have made far more sense.

F. Conclusion

38Having carefully considered all of the evidence, I accept S.H.’s testimony about what occurred and find as a fact beyond a reasonable doubt that Mr. Ignacio forcibly penetrated her vagina with his penis after she had clearly and repeatedly advised him that she did not consent to him doing so.

III. DISPOSITION

39For the foregoing reasons, Mr. Ignacio is found guilty.

Justice P.A. Schreck

Released: March 7, 2019.

CITATION: R. v. Ignacio, 2019 ONSC 1511

COURT FILE NO.: CR-18-30000083-0000

DATE: 20190307