Court File and Parties
COURT FILE NO.: CR-21-10000665 DATE: 20231027
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – CONAL QUINN Defendant
Counsel: Milan Rupic, for the Crown David Butt, for Conal Quinn
HEARD at Toronto: September 18, 19, 20 and 21, 2023
NOTICE OF RESTRICTION ON PUBLICATION
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant or a witness may not be published, broadcasted, or transmitted in any manner.
REASONS FOR JUDGMENT
Penman J.
OVERVIEW
[1] Conal Quinn stands charged with one count of sexual assault of E.W. on March 21, 2021. Constable Quinn was a Toronto Police Service (TPS) officer at the time and is alleged to have committed the offence while on duty.
[2] On March 20, 2021, Constable Quinn and his partner, Constable Semple attended a radio call at the residence of E.W. in relation to threatening text messages that she had received. She believed these messages had come from an ex-girlfriend of her ex-boyfriend. Constable Quinn and Constable Semple spoke with the complainant and then left to complete their report.
[3] Back at the station Constable Semple overheard Constable Quinn speak to the complainant updating her about having cautioned the person they believed to have sent the messages. The Crown alleges this was a ‘fake’ phone call designed to manipulate Constable Semple into thinking the investigation was closed allowing Constable Quinn to have contact with the complainant on his own. The phone records of the complainant show no such phone call ever occurring.
[4] The Crown alleges that when Constable Quinn attended the complainant’s residence the next day he engaged in sexual activity with E.W. without her consent. The complainant testified that Constable Quinn began kissing her and pulled her into the bedroom where he digitally penetrated her both vaginally and anally. E.W. testified that Constable Quinn sucked on both of her breasts. She described him pulling out his penis and pushing her head down forcing her to give him fellatio. The complainant testified that she froze and was scared. She described not knowing what to do, being scared and just giving in.
[5] E.W. attended Women’s College Hospital the next day on March 22nd, 2021, where swabs were taken from her breast area and sent to the Centre of Forensic Sciences (CFS). It was determined that Constable Quinn’s DNA was present in both swabs taken from E.W.’s left and right nipples. The complainant provided a statement to the Special Investigations Unit (SIU) on March 25, 2021.
[6] Constable Quinn testified at trial. He acknowledged that there was sexual activity with the complainant. He testified that not only did the complainant consent to the sexual activity, but it was at her instigation. He acknowledged hugging and kissing the complainant. She asked him to follow her into the bedroom. By the time he reached the bedroom she was already lying on the bed. He described going to take his vest off but that the complainant told him to leave it on. He interpreted this to mean that this was acting out a fantasy for her.
[7] Constable Quinn testified that he put his hand between the complainant’s legs over her clothes. She lifted her top and exposed her right breast. He proceeded to suck on her nipple. After a few minutes she stopped him, removed her left breast, and asked him to suck on that nipple as it was more sensitive. Constable Quinn described feeling the complainant reach to his groin area, unzip his pants, and remove his penis. He denied digitally penetrating the complainant or forcing her to give him fellatio.
[8] The issue in this case is consent, specifically did E.W. consent to the sexual activity with Constable Quinn on March 21, 2021. Honest but mistaken belief in consent is not an issue in this trial. In the alternative, if E.W. did consent was that consent vitiated by virtue of s. 265(3)(d) or s. 273.1(2) of the Criminal Code. Specifically, is any consent by E.W. vitiated by an abuse or misuse by Constable Quinn of his authority as an on-duty police officer.
A. Did E.W. consent to the sexual activity on March 21, 2021?
[9] The accused is charged with one count of sexual assault contrary to s. 271(a) of the Criminal Code. In order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: i) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity; ii) that the complainant did not consent to this touching; and iii) that the accused knew that the complainant was not consenting to the sexual touching, or that he was reckless or willfully blind to whether or not the complainant was consenting: see R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para 23-25.
[10] The law is clear that the actus reus of the offence of sexual assault involves a purely subjective view of consent:
….for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective. Ewanchuk at para 27.
[11] Consent is defined in s. 273.1(1) the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Consent is not an all or nothing concept. A complainant can consent to some types of sexual activity but not others. Consent can also be revoked at any time. Consent requires a freely given “conscious agreement of the complainant to engage in every sexual act in a particular encounter: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 at para 31; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3 at para 44; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 at para 88; Ewanchuk at para 36.
[12] This case primarily turns on the credibility of the witnesses. Given that Constable Quinn testified, in assessing whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the three important principles articulated by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742 at paras 27-29:
a. If I believe the testimony of Constable Quinn that he did not commit the alleged offence, I must find him not guilty;
b. Even if I do not believe the testimony of Constable Quinn that he did not commit the alleged offence, if his testimony leaves me with a reasonable doubt as to his guilt regarding the offence, I must find him not guilty; and
c. Even if the testimony of Constable Quinn does not leave me with any reasonable doubt as to his guilt, I may only find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.
[13] The court's evaluation of Constable Quinn's testimony must, of course, take the whole of the evidence into account. The application of these principles ensures that reaching a verdict does not devolve into a mere "credibility contest" between the two main witnesses, E.W., and Constable Quinn. It also ensures the proper application of the presumption of innocence and the Crown's burden of establishing the alleged guilt of the accused beyond a reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras 6-8.; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28.
[14] The Crown argued that I should accept the clear and convincing evidence of the complainant that she did not consent to any sexual activity that day. The Crown argues that I accept her evidence that she said no several times, that she didn’t know what to do borne out of the fact that she was scared and that he was a police officer.
[15] The Crown argues that I should accept Constable Semple’s evidence that she overheard Constable Quinn phone the complainant to update her, and that this was in fact a fake phone call designed to mislead Constable Semple about the status of the investigation. The Crown argues I should reject the accused’s evidence as a whole and specifically the explanation of Constable Quinn that he had just forgotten and was mistaken about not phoning the complainant.
[16] Counsel for Constable Quinn argues that his character suggests that it is highly unlikely that he committed this crime. Constable Quinn acknowledged wrongly engaging in sexual activity but did not sexually assault the complainant. They argue further that his testimony was consistent and reliable and therefore raises a reasonable doubt.
[17] The defence also argues that the complainant’s evidence was rife with frailties both internal and external to her narrative, to the point where it requires corroboration. The complainant’s inconsistent evidence and narrative about the phone calls she made after the fact, render her evidence wholly unreliable.
[18] For the following reasons I find Constable Quinn guilty of sexual assault.
Constable Quinn’s Evidence
[19] I begin with my analysis of Constable Quinn’s evidence.
[20] Constable Quinn put his character in issue, particularly in relation to his policing career. He first began working out of 14 Division in September of 2000, then moved to 23 Division. Sometime in 2008 Constable Quinn transferred to the ETF (Emergency Task Force). The ETF is considered an elite position within the police force and involves a rigorous physical, mental and technical selection process before acceptance. The officer described that there are regular psychological assessments done of the ETF officers to ensure they are mentally fit for the position.
[21] Constable Quinn described that for several years he was also a team leader. For two years the officer was seconded to a unit that provided security to the Prime Minister during visits to locations outside Ottawa. Constable Quinn was with the ETF for twelve years and voluntarily transferred out of the ETF. He had no disciplinary proceedings brought against him and does not have a criminal record.
[22] A large part of the accused’s evidence focused on this and there is no doubt that up to this point Constable Quinn has had an exemplary police career. In submissions it was suggested that the ‘characterological arc’ of Constable Quinn’s policing career suggests the impossibility of his committing this crime.
[23] The difficulty with this submission is that on his own evidence, Constable Quinn did engage in sexual conduct with the complainant, while in uniform, and while on duty. This constitutes and was acknowledged to be clear police misconduct and seemingly entirely out of character for Constable Quinn. This serious lack of judgement does not mean that Constable Quinn is guilty of sexual assault, but it certainly undermines the suggestion that Constable Quinn’s character would have made it highly unlikely that he committed this crime.
[24] For the following reasons I do not accept the evidence of Constable Quinn. First, I find that he faked a phone call to the complainant in front of Constable Semple to give himself room to engage with the complainant on his own. Second, he provided inconsistent evidence about whether he called the complainant in front of Constable Semple, including a sworn affidavit. Third, he created opportunities to see the complainant before and after the fact without telling his partner or any other officer.
i. Fake Phone Call
[25] On March 20, 2021, Constable Quinn and his partner Constable Semple were dispatched to a Toronto address in relation to a threats call. When they arrived the complainant, E.W. described receiving threatening text messages on the morning of March 20, 2021. She believed it to be a message from an ex-girlfriend of her ex-boyfriend. The messages scared her. The officers discussed with the complainant the options available to her including the officers calling the number associated to the messages to provide a warning. The complainant was happy to proceed with this option and the officers indicated they would follow up.
[26] Officer Semple gave the complainant her email address for the purpose of obtaining screenshots of the text messages and believes she provided her with a business card. Constable Semple did not recall Constable Quinn providing his business card or contact information to the complainant. Constable Semple had no other dealings with the complainant and was not aware of Constable Quinn having any further dealings with her either.
[27] Later that day Constable Quinn phoned the number associated to the messages. Constable Semple could only hear his side of the conversation. After the phone call he reported that the person on the other end of the line denied sending the messages or even knowing the complainant, but that he had cautioned them in any event. Constable Semple then overheard Constable Quinn make another phone call. Again, Constable Semple was only able to hear Constable Quinn’s side of the conversation but believed he was speaking to the complainant. She heard him advise the person that they had called the number related to the messages and that if things escalated to let them know.
[28] When Constable Quinn got off the phone, he told Constable Semple that he had updated the complainant. Constable Semple updated the occurrence report with this information. The officer was shown a copy of the occurrence report which indicates “W. was advised of the results and was told to notify PC Semple b11467, if she receives any more messages.” Constable Semple’s recollection of overhearing Constable Quinn phone the complainant was not challenged.
[29] It is agreed that Constable Quinn attended back to the complainant’s apartment alone in uniform at 1:45pm and left at 1:54pm. E.W. told the court that prior to Constable Quinn arriving at the apartment for the second time, she had not received a call from him to update her on the investigation. E.W.’s phone records were entered as an exhibit and confirm there was no such call.
[30] The Crown alleges Constable Quinn faked this phone call for the purpose of misleading Constable Semple into believing the investigation was now closed. This would allow Constable Quinn to engage with the complainant on his own which is exactly what he did. Constable Quinn denied this suggestion.
[31] While the accused denied he faked the phone call, I find that he did. I accept Constable Semple’s evidence that she overheard what seemed to be Constable Quinn phoning the complainant to update her. I find that Constable Quinn did not phone the complainant. I find that he faked a phone call to mislead Constable Semple into thinking the investigation was now closed, so that he could attempt to see the complainant without her or any other officer knowing.
[32] This conclusion is supported by Constable Quinn’s inconsistent evidence about this phone call.
ii. Inconsistent Evidence about the Phone Call
[33] When asked about the phone call that Constable Semple described overhearing him make to the complainant, Constable Quinn initially testified that he phoned her but could not get her on the phone. On cross-examination Constable Quinn testified that he assumed he had called the complainant although has no recollection of doing so. He indicated he recalled speaking with “Brandy” but has no recollection of calling the complainant and her not picking up. When asked about Constable Semple’s evidence of overhearing him on the phone, Constable Quinn responded that he didn’t know why she would testify to that. The phone records of the complainant show no such call ever occurring.
[34] Constable Quinn swore an affidavit on May 18th, 2023, which was filed on the section 276 application. He swore that he had phoned and spoken with the complainant to advise her that he had spoken to someone they believed to be the ex-girlfriend and cautioned her. In cross-examination on the section 276 application, he reiterated more than once that he phoned the complainant from the station. Constable Quinn testified that after swearing his affidavit and testifying at the 276 hearing, he saw the disclosure and he realized that his sworn testimony was “no longer true”. In assessing credibility trial judges are entitled to consider discrepancies between an accused’s 276 voir dire evidence and their trial evidence: see R. v. H.P., 2022 ONCA 419 at paras 39 and 50.
[35] Constable Quinn explained that at the time of the swearing of the affidavit and the cross-examination, his recollection was that he had phoned the complainant, but having seen the phone records realized he was wrong. The Telus affidavit attached to the phone records is dated August 3, 2023. He denied the suggestion that he was only changing his evidence now to conform with the phone records which show no such call.
[36] By the time Constable Quinn swore his affidavit in this case he had plenty of time to carefully consider his recollection of his interactions with the complainant. This was a significant event in his life. As a police officer he would have known the importance of being truthful in an affidavit. Equally he must have understood the importance of testifying truthfully during the motions in this case. His change in testimony on this very important point is not credible and I find that he is not being truthful.
[37] Constable Quinn’s decision to go back to the apartment on the afternoon of March 20, 2021, also supports my finding that he faked the phone call to the complainant. Constable Quinn explained that he attended at the complainant’s apartment the second time to update her on the status of the investigation and tell her that the person who sent the text messages had been warned. He would not have needed to go to her apartment to tell her this if he had already told her about this information on the phone. Constable Quinn never told Constable Semple about this meeting.
[38] It is not credible that Constable Quinn would have forgotten speaking to the complainant by phone given the importance of this narrative to his evidence that E.W. was the instigator of the sexual activity. If the officer had spoken with the complainant, he would not have gone to her apartment. I find that Constable Quinn faked the phone call and manufactured a situation where he would need to see the complainant again, without the involvement or knowledge of Constable Semple. Constable Quinn’s evidence on the s. 276 application was an attempt to have his evidence conform with that of Constable Semple. I do not believe Constable Quinn’s claim that now having seen the phone records he had forgotten and was just mistaken about phoning the complainant. I find that Constable Quinn’s testimony on this point was an attempt to mislead the court about his intentions that day.
iii. Creating Opportunities to see the Complainant
[39] When Constable Quinn was at the complainant’s apartment on his own during the afternoon of March 20th, she told him she was going to spend the night at a friends. He then offered to have an officer take her upstairs when she came back if she was not feeling safe. He acknowledged that he would not have attended at the apartment had he spoken with her on the phone.
[40] The officer testified that he followed up again with her the next morning to see how she was doing. They spoke for approximately ten minutes, and he again reiterated that she could call the station if she wanted someone to take her back into the apartment.
[41] Constable Quinn returned later that afternoon to escort her back into the apartment. This is when the alleged sexual assault occurs. The officer made a memo book entry of this visit “upstairs to make sure for her that she is ok. All in order”. He makes no mention of the sexual activity with the complainant. This is the only note taken by Constable Quinn of his interactions with the complainant after the initial radio call.
[42] Constable Quinn phoned the complainant again on March 22nd at 6:48pm and left a message stating, “Hey it’s your friendly neighborhood police officer checking up on you, making sure everything’s okay. I’ll knock on your door later if I can, okay? Thank you. Bye”.
[43] Every time the officer was asked about these calls, he indicated he was just following up, checking on the complainant. This evidence does not make sense. If the officer’s version of events is to be believed, he had just participated in what he knew was gross misconduct. This was no longer a police matter. If he was “checking up” on her, it was for personal reasons. There was certainly no need to follow up with her with respect to the original complaint, and if that really was his concern, he could have asked Constable Semple as the junior officer to simply give the complainant a call. There is no explanation for why the officer was going to such great pains to follow up with the complainant about how she was doing or whether she needed assistance getting back into her apartment. This was a routine matter that had not even resulted in a charge being laid.
[44] I find that Constable Quinn intentionally created a situation where he could attend at the complainant’s residence to speak with her in person and alone. Through this meeting the officer was able to present himself as the “friendly neighborhood police officer” who could be trusted. Telling the complainant that she could call the division and ask for assistance coming back to her apartment was another attempt by the officer to have contact with the complainant at her apartment.
[45] What is also troubling is the evidence that on the evening of March 23, 2021, the officer attended at the complainant’s residence with Constable Yeung, again purportedly for the purpose of checking in to see if she was “good”. Constable Yeung was not told the reason for the follow-up and did not ask. By this time the complainant was not answering his calls and had already been to the hospital. It was argued by the Crown that this conduct was driven by a growing concern on the part of the officer that he was about to be caught out.
[46] This behavior occurs after either a consensual or nonconsensual sexual encounter. If the sexual activity had been consensual and the officer simply wanted to see the complainant again, it would not make sense for him to bring along another officer. There was also no need for more follow up with respect to the original radio call as that investigation had closed. If the sexual activity was nonconsensual, attending with another uniformed officer would only serve to remind the complainant of his status as a police officer.
[47] Constable Quinn testified that the complainant was the one who initiated the sexual activity and was the aggressor the entire event. If the officer is to be believed, the complainant mid conversation suddenly leaned up and kissed not just a stranger but an on-duty police officer she had just recently met. This behavior then continues to the bedroom where Constable Quinn asserts, she was hoping to live out some kind of fantasy of having sex with a uniformed police officer. I do not believe Constable Quinn’s evidence on this point.
[48] Constable Quinn’s fundamental narrative is that he was a police officer just doing his job and mistakenly succumbing to temptation. I find on the evidence that he misled his partner with a false phone call and engineered occasions outside of his police duties where he could have contact with the complainant for the purpose of engaging in sexual activity. As a result, I do not believe the officer’s evidence that he was just doing his job that day and fell victim to the sexual advances of the complainant.
[49] I do not believe Constable Quinn’s evidence, nor does it raise a reasonable doubt. The question is not, however, whose version I believe, the officer or the complainant. On the third arm of the test, I must still look to the rest of the evidence to determine if on a review of the whole of the evidence, I am left with a reasonable doubt.
Credibility and Reliability of E.W.
[50] Counsel for Constable Quinn argued that the complainant’s evidence was so implausible that in the circumstances of this case, it requires corroboration. I reject that submission in its entirety. The complainant’s evidence of the events of March 21st, 2021, was not so incredible as to be hard to believe. In fact, I find that the narrative she gave was credible and persuasive. More importantly, s. 274 of the Criminal Code makes clear that corroboration is not required for a conviction.
[51] Defence counsel argues that E.W.’s evidence was incredible for a number of reasons. The defence argued that E.W.’s evidence about the “meth” question was disingenuous. Her claims that Constable Quinn used the phrases “he’s a dirty cop”, “I’ve never done that with a victim before” were attempts to embellish a false narrative. Counsel also argued that it would have been impossible for the complainant to perform fellatio on Constable Quinn given everything that was on his equipment belt. The defence position is that E.W.s evidence about the phone calls she made after the fact demonstrate the unreliability of her evidence. It was argued that the complainant has a financial motive to lie. Counsel also argued the implausibility of Constable Quinn engaging in this sexual assault given his training and how easily his movements could be monitored through the GPS in his phone and vehicle.
[52] When the two officers first attended at her apartment, E.W. explained the situation with her ex-boyfriend. He had spent eleven years in custody, had recently been released and had introduced her to hard drugs. She gave him upwards of $5000 but could not recall if it was for drugs generally or a particular drug. She agreed that her ex-boyfriend tried to get her hooked on drugs but when pressed said she only took “meth” on one occasion. She denied telling Constable Quinn that she and her ex-boyfriend had frequented drug houses and taken meth.
[53] When Constable Quinn was alone in her apartment the next day, he asked her what it’s like to take crystal meth. She found the question strange but because he was a police officer was honest and answered, “it made me feel horny”. The defence argued that when E.W. was asked by Constable Quinn what it’s like to be on “meth” her response that it made her feel “horny” turned the encounter sexual. E.W. was the one who told the SIU when she was first interviewed about this conversation. E.W. was being honest with the police about what had taken place in her apartment.
[54] Describing to Constables Semple and Quinn the drug history with the ex-boyfriend was a necessary context given her fear about the messages in relation to that very ex-boyfriend. That discussion was in relation to the radio call. Constable Quinn then asking the complainant when he was alone in her apartment what it was like to take “meth”, moved the issue from one of context to a personal one not related to the investigation. I also find that the complainant’s history with her ex-boyfriend revealed her to be a vulnerable person and that this would have been obvious to Constable Quinn.
[55] Constable Quinn then told her she looked like she needed a hug and proceeded to hug her. E.W. testified that she froze and did not know what to do or make of it. She testified that she was scared because he was a police officer, and felt it was wrong. She again stood up hoping he would leave. He began rubbing her back. E.W. stood up hoping he would leave when Constable Quin kissed her and put his tongue down her throat. She described this as very unpleasant. E.W. did not want the officer to rub her back, hug her or kiss her. She had told him no although not in a vigorous tone of voice. Constable Quinn walked into the kitchen commenting at some point that he is a “dirty cop”. He then pulled her into the bedroom and pushed her on the bed. He then lay next to her and put his hands down her pants and proceeded to put his fingers in her vagina and anus. He then removed his fingers and licked them.
[56] Constable Quinn then lifted her shirt and hoodie, removed her breasts from her bra and proceeded to suck on both of her nipples. Constable Quinn then unbuttoned his pants, pulled his penis out, and pushed her head down motioning for her to perform oral sex on him. The complainant testified that his penis was uncircumcised and not fully erect. She testified lifting her head up and the officer pushing it back down saying he wanted to ejaculate in her mouth. She followed his instructions because she was afraid. The officer ejaculated and the complainant described going to the bathroom to spit and wash out her mouth.
[57] The complainant included details in her account including that she could feel the officer’s vest against her while he had her pinned against the kitchen cupboard. She described saying no and moving her head from side to side while he was kissing her again in the kitchen. When testifying about the events in the bedroom, she described in detail the officer unzipping his pants, seeing something white, seeing his uncircumcised penis and that it was not fully erect at the time. The complainant indicated that when the officer was leaving, he commented that he had “never done that with a victim before”.
[58] The argument was made that it would have been impossible for E.W. to fellate Constable Quinn given the number and location of items on his equipment belt. Constable Quinn was wearing his equipment belt which included a magazine pouch which held two magazines, the holster with his firearm, a first aid pouch, handcuff pouch, expandable baton, and radio. The magazine and handcuff pouches were at the front of the belt. On Constable Quinn’s own evidence, he engaged in sexual activity with his gun belt on, including having his penis taken out of his pants and stroked. I do not believe that it would have been impossible for fellatio to occur and accept her testimony on this issue.
[59] The complainant testified that she said no while it was happening although testified regretting that she was not more vocal. Her evidence was clear that this was not something she ever wanted, she never wanted to kiss the officer and that she did not consent to any of the sexual activity. She acknowledged the feeling of “giving in” borne out of the fact that he was a police officer, not knowing what to do and was scared. I accept the complainant’s evidence on this point.
[60] Counsel for Constable Quinn argued that the utterances, “he’s a dirty cop”, “no one’s looking for me”, and “never done that with a victim before” were attempts to embellish a false narrative and completely implausible. I find that there is nothing implausible about these comments.
[61] E.W. was cross-examined about the phone calls she made after the fact. It was argued that her evidence about who she called and when was vague and not supported by the phone records. Counsel for Constable Quinn argued that this should cause the court concern with respect to the reliability and veracity of her evidence.
[62] She was taken through her Koodoo phone bill and save one phone call, identified each of the calls on the bill from March 20th at 8:39am until March 22nd at 10:00pm. She had difficulty recalling the order of the phone calls that she had made.
[63] She testified that the first person she called was Russel who lived in Los Angeles. She was cross-examined on the fact that she didn’t know Russel’s last name, nor did the call show up on her phone records. E.W. testified that he was a person she felt safe telling what happened, and that she had used WhatsApp to call him as it was free. E.W. was also challenged with respect to the call that she told the SIU that she had made next to a person named Mark. Again, she agreed she did not provide Mark’s last name to the SIU and that she had called him on WhatsApp although it appeared he did not live outside Ontario.
[64] E.W. also testified that she phoned her father and mother in the UK also on WhatsApp again to avoid phone bill costs. She was directed to her phone bill which showed numerous calls to her friend Kwang Sheng. E.W. explained these discrepancies as being a result of talking about the events four days after the fact and that she was traumatized by having to recount the sexual assault to the SIU. She acknowledged that the phone records demonstrated that her account was mistaken with respect to the phone calls that were made, and how often she had spoken to Kwang Sheng in particular. I accept this evidence and her explanation that several of the calls were made through internet apps such as WhatsApp and would not have appeared on her phone bill in any event. I also remind myself not to engage in stereotypes or myths about how a sexual assault complainant might or should behave after a sexual assault.
[65] E.W. testified that after Constable Quinn left her apartment, she eventually went to spend the night with Kwang Sheng. He convinced her to phone her mother about what had taken place. Her mother told her that she should go to the hospital. Her attendance at the hospital is consistent with this narrative: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para 65 and R. v. Dinardo, 2008 SCC 24 at para 37. It is also supportive of the complainant’s evidence that the sexual activity was not consensual: see R. v. Brown, 2023 ONCA 417 at para 22.
[66] E.W. had counsel present at the time she gave her statement to the SIU. It was suggested to the complainant that she hired this counsel because of her work seeking compensation for victims of violence. The home page of counsel’s website was filed which I note makes no mention of this practice area. Nor was the specific suggestion put to the complainant that these allegations were fabricated for the purpose of her seeking financial compensation. It is agreed that no notice of civil action has been filed by the complainant.
[67] Counsel for Constable Quinn argued that the SIU did not take proper investigative steps to confirm the complainant’s evidence that she had spoken with Russel, Mark and Kwang Sheng after the event. The argument was made that this error left a hole in the Crown’s case with respect to corroboration of the complainant’s account and speaks to her poor reliability. Again, corroboration was not required. The investigatory steps are covered by facts agreed by counsel. I do not find that any of the investigative steps taken or not taken have any effect on my assessment of the case.
[68] While it is true Constable Quinn’s attendance at the complainant’s residence could easily have been verified given the involvement of dispatch, arriving in a TPS vehicle and parking out front, the issue was not his attendance per se. There was nothing technically wrong with Constable Quinn attending at the complainant’s residence. The problem is what happened while Constable Quinn was in her apartment out of public view. The suggestion that if these allegations were true that Constable Quinn would have used his training and conducted a surreptitious entry, misses the point.
[69] The complainant is a credible and reliable witness. E.W. testified in a straightforward manner becoming emotional when describing the more personal aspects of the encounter. E.W. disclosed her involvement in drugs and volunteered this information to the SIU. Her evidence was clear that she did not consent to any of the sexual activity. She struck me as being clear, honest, and fair in her account of the events. That there was sexual activity is not in dispute. Rather, the issue is whether it was consensual. On the disputed issues, I accept E.W.'s evidence that she did not consent to the sexual activity on March 21, 2021.
B. Application of s. 265(3) and s. 271.1(2)(c)
[70] The Criminal Code in s. 273.1(2) sets out a non-exhaustive list of circumstances in which no consent is obtained. This list must be read together with s. 273.1(1). Of relevance to this case is s. 273.1(2)(c) which states that no consent is obtained where “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.
[71] If, however, a complainant was coerced into consenting because an accused abused a position of trust, power or authority over her, the consent given is not valid or is vitiated: R. v. G.F., 2021 SCC 20 at para 47; Criminal Code s. 265(3)(d); R. v. Snelgrove, 2019 SCC 16 at para 3.
[72] Unlike section 265(3)(d), s. 273.1(2)(c) is broader and serves to capture situations that not only speak to the abuse of a position of authority but also “to the misuse of a position of power or trust”: R. v. Lutoslawski, 2010 ONCA 207 at para 12. Coercion is not required to establish that consent has been vitiated. The primary consideration under s. 273.1(2)(c) is the exploitation of the imbalance to induce consent: Lutoskawski at para 13.
[73] R. v. Snelgrove, 2018 NLCA 59 at paras 18-24 affirmed by the Supreme Court in 2019 SCC 16 outline the principles that establish vitiated consent under s. 273.1(2)(c). Snelgrove dealt with an on-duty police officer charged with sexual assault. The Supreme Court at para 16 and 25 affirmed that the relationship of an on-duty police officer to a member of the public is presumed to be one of trust or authority absent evidence to the contrary. If the accused misuses his position of trust, power or authority, the Crown must prove that the complainant was induced. The accused’s position as an on-duty police officer is not enough on its own to establish vitiated consent. The crown can rely on direct or circumstantial evidence to establish inducement.
[74] Factors such as the vulnerability of the complainant, if the officer was in violation of any police policy, and if the officer was in uniform and on-duty, all play a part in this analysis: see Snelgrove para 25-28 and 46.
[75] My earlier analysis is enough to dispose of this case. If I had needed to however, I would have found that any consent would have been vitiated by virtue of s. 273.1(2)(c). I find that s. 273.1(2)(c) would apply as opposed to s. 265(3)(d).
[76] Justice Doherty explains the distinction between these two sections in R. v. Lutoslawski at para 12,
“…The term ‘exercise of authority’ in s. 265(3)(d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationship set out in s. 273.1(2)(c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.”
[77] This distinction applies on the facts of this case. The complainant gave direct evidence that she did not consent to the sexual activity. The complainant also testified that at a certain point she just “gave in” not knowing what to do given Constable Quinn’s status as a police officer. To the extent that it could ever be suggested that the complainant’s conduct suggested consent or willing participation, I find that her consent was vitiated.
[78] Constable Quinn used his status as a police officer to ingratiate himself with the complainant, ultimately putting himself in a position where he was alone with the complainant in her apartment. The officer misused his authority and exploited that imbalance to induce any consent that could have been found and have her engage in sexual activity with him.
[79] The officer was in violation of police policy given he was on-duty, armed and in uniform engaging in sexual conduct with a complainant. He was in effect operating outside any area of responsibility given the original investigation had been closed; Snelgrove at paras 25-28 and 46.
DISPOSITION
[80] I am satisfied beyond a reasonable doubt that Constable Quinn is guilty of sexual assault of E.W. on March 21, 2021.
