Court File and Parties

Court File No.: Toronto Region, Metro North Court

Date: 2012-11-21

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andres Casilimas

Before: Justice Leslie Pringle

Heard on: September 17, 19 and 26, 2012

Reasons for Judgment released on: November 21, 2012

Counsel:

Ms. S. Cressman for the Crown

Mr. R. Covre for the accused Andres Casilimas

PRINGLE J.:

1. Introduction and Overview

[1] On May 28, 2011, M.L. learned that her boyfriend was engaged to be married to someone else and as a result, she decided to go out drinking and get drunk. She remembered being at a neighbourhood pub called Chalkers, and then had flashes of recollection about being at a club downtown called the Comfort Zone. She did not remember meeting the defendant Mr. Casilimas, and had no recollection of having sex with him on the ground outside 135 Marlee Avenue at about 1.30 in the morning on May 29th. She could not remember consenting to have sex with him, but said it was possible, she just couldn't remember.

[2] Mr. Casilimas acknowledged that he had intercourse with Ms. M.L. on the ground outside 135 Marlee, and said that it was with her consent.

[3] This case was professionally prosecuted and skilfully defended. The parties agreed on the law, and prepared a joint book of authorities for my consideration. There was an agreed statement of facts, and it was not contested that Ms. M.L. had a blood alcohol content of 170 mg of alcohol in her 100 ml of her blood shortly after 5.53 a.m., and 230 mg of alcohol in 100 ml of her urine.

[4] In support of the Crown's case, Ms. Cressman called the complainant Ms. M.L.; a civilian witness Aaron Viccari who made observations of Ms. M.L. and Mr. Casilimas at 135 Marlee Avenue that caused him concern; and three police officers who attended on the scene at 135 Marlee Avenue. A DVD video from a security camera at 135 Marlee was also played on consent, briefly depicting Ms. M.L. and Mr. Casilimas on camera in front of that address.

[5] In the defence case, Mr. Covre called Mr. Casilimas to testify on his own behalf.

[6] The parties agree that the issues are as follows:

1. Did Ms. M.L. have the capacity to consent to sexual intercourse with Mr. Casilimas that early morning?

2. If not, did Mr. Casilimas honestly but mistakenly believe she was able to consent?

3. Even if Mr. Casilimas believed Ms. M.L. was consenting at some point, was he reckless or wilfully blind to her inability to consent at the time of intercourse?

[7] I have determined that Ms. M.L. did not have the capacity to consent to sex with Mr. Casilimas at the time they had sexual intercourse. Although I found that Mr. Casilimas was a plausible witness in some respects, I regret to say that I did not believe his evidence that Ms. M.L. was able to consent to have sex with him just minutes before she passed out. In any event, I found that at the very least, Mr. Casilimas was wilfully blind to Ms. M.L.'s inability to consent.

2. Summary of the Evidence

[8] Ms. M.L. testified that she arrived at Chalkers Pub about 2 p.m. on Sunday afternoon, and she probably had about three drinks of vodka and cranberry. She went home briefly, and then returned to Chalkers and resumed drinking. After that she had some recollection of being at the Comfort Zone, which she described as a place where everyone goes to get drunk and do drugs. She didn't specifically remember drinking there, but she assumed she did. Her last clear memory was of being at Chalkers, and the next thing she remembered was waking up in an ambulance and being taken to hospital.

[9] In cross-examination, Ms. M.L. agreed that she might have sat on Mr. Casilimas' lap at the Comfort Zone, and said it was possible she wanted to be with someone that night. She also agreed that it was possible she consented to sexual contact with Mr. Casilimas. She said that she didn't want to accuse anyone since she simply didn't remember what happened.

[10] Aaron Viccari was 26 years old, and a recent graduate from a Police Foundations program, with hopes to work for the RCMP. Between 1 and 1.15 a.m. on May 29, 2011 he was dropping a friend off in the area of Marlee and Roselawn when he saw a man and a woman. He noticed that the man had hold of the woman, and had his arms around the woman's torso. He said the woman's feet were off the ground and she was wiggling, and he had the impression that she was trying to break free from the man. Mr. Viccari thought it was bizarre, and after dropping his friend off, he drove by the area again because he believed something was wrong.

[11] On the second occasion, (about 8 minutes after the first), Mr. Viccari saw the man and the woman again. At this point, she was lying face up on the grass on the corner of the street. The man was standing above her and shouting at her to get up. The man was not wearing a shirt.

[12] Mr. Viccari didn't believe he had much battery in his phone, so he went in search of a police officer, and spent some time trying to locate one. Eventually he found 2 officers and told them what he had seen and gave them the location of the man and the woman before he began to return home. However, before he got home he felt that he should ensure that everything was settled and right, so he turned around and went back to the scene.

[13] When he came back to Roselawn and Marlee (about 25 to 30 minutes after the second occasion), Mr. Viccari didn't see any police, and initially didn't see the man and the woman. However, he used a high beam on his turn signal to look in the direction of the apartment building on the corner and then saw the man pinning the woman up against the building between the building and a bush. The woman was on her back, and Mr. Viccari couldn't tell if she was fully clothed or not. He said the man was on his knees in front of the woman, and looked back at him. Mr. Viccari knew that something was not right, and felt worried for the woman's welfare. He then discovered some battery remaining on his phone and called police who arrived about 1 ½ - 2 minutes later.

[14] In cross-examination Mr. Viccari agreed that he didn't know either the man or the woman in question, and had no idea what their relationship might be. He agreed that, other than hearing the man shout at her to get up, he didn't see the man nudge or kick the woman or force her to do anything. I don't think there's any dispute that the man in question was Mr. Casilimas, and the woman was Ms. M.L.

[15] EX 12 was the video footage taken from the security camera at the outside entrance to the apartment building at 135 Marlee Avenue. It was agreed that it depicted Mr. Casilimas and Ms. M.L. at some point before the police arrived at 1.36 a.m. The footage briefly showed the two of them walking past the front of 135 Marlee. They appeared to touch arms at one point, separate and veer back together. Ms. M.L. appeared off balance. As they walked out of range of the camera, Ms. M.L. moved unsteadily away while Mr. Casilimas followed her and seemed to catch her by the arm. They moved out of camera range side by side.

[16] Three police officers testified about their observations of Mr. Casilimas and Ms. M.L. as they arrived at Marlee and Roselawn at 1.36 a.m.

[17] Cst. Singh saw Ms. M.L. lying on the ground with Mr. Casilimas behind her on his knees, engaged in what the officer thought was sexual activity. Cst. Singh said he didn't actually see intercourse occurring, but when Mr. Casilimas saw him, he said he stood up and pulled up his pants. Cst. Singh testified that Ms. M.L. was lying face up and had no pants or underwear on.

[18] Sgt. Minor also believed that Mr. Casilimas and Ms. M.L. were engaged in a sexual act when he arrived. He didn't see actual penetration, and didn't make a note of whether Mr. Casilimas' penis was erect when he stood up and pulled up his pants. When asked, the officer then recalled that the penis was erect.

[19] Sgt. Minor said Ms. M.L. was lying on the ground with her chest down, with her pants down to her ankles and her shirt pushed up to her shoulders. She was not moving. As he approached her, he saw that her eyes were fixed and she wasn't blinking. He described them as "dead eyes", and he believed that Ms. M.L. was deceased. He tried talking to her, shaking her, and rubbing his knuckle into her shoulder as a pain stimulus, but could get no response. Eventually he realized that there was faint breathing, which became steadier as they continued to try and revive her from a catatonic state. Within a few minutes she stirred and tried to stand, but she was unable to stand without assistance. She was confused, whimpering and crying.

[20] Cst. Reinhart's attention was drawn to the man and woman by her partner, Cst. Singh. She saw Ms. M.L. lying without moving on the grass, face down, with her pants down below her buttocks. Mr. Casilimas was wearing no shirt, and was in the process of standing up while pulling up his pants. She then saw Mr. Casilimas attempt to pull up Ms. M.L.'s pants but as police approached, they directed him away from her. She said Mr. Casilimas seemed to square off and assume a "flight or fight" stance, but when Sgt. Minor pulled out his taser, Mr. Casilimas complied with their demands to move away.

[21] Cst. Reinhart attended to Ms. M.L. as she began to revive. The officer described that Ms. M.L.'s eyes began to flicker as she started to come to, but continued to "kind of roll back in her head". At first, she couldn't speak at all and was barely conscious. After a few seconds Cst. Reinhart was able to get her to her feet, but said that if she hadn't supported her, Ms. M.L. would surely have fallen. The officer tried to help her get her pants up, but this was difficult as her pants were soaking wet. Cst. Reinhart testified that when Ms. M.L. became a little more conscious, she was still unable to answer, but eventually was able to mumble a name to the officer. Her speech was very slurred and she was crying. According to Cst. Reinhart, Ms. M.L. appeared to be unaware of the circumstances the police had found her in.

[22] None of the officers noticed any odour of alcohol on Mr. Casilimas.

[23] Mr. Casilimas testified that during the day on Sunday May 29th, he had gone to a boat cruise at Harbourfront with a friend named Adam. He probably had 3 Heineken beers on the cruise. After the cruise he wanted to go for a couple of drinks at the Comfort Zone with Adam, but Adam decided to go home, so Mr. Casilimas went on his own. He arrived at about 5 p.m.

[24] While on the patio, he said he literally bumped into Ms. M.L. as they passed, and he said to her "whoops, I almost kissed you". She said, "oh, you know how to kiss, show me", so he kissed her with a sensual kiss on the lips for about 10 seconds. Ms. M.L. then came and sat on his lap and they chatted for about 15 minutes. Mr. Casilimas said that Ms. M.L. seemed perfectly normal to him. This was around 6 or 7 p.m.

[25] Mr. Casilimas explained that Ms. M.L. went to the washroom and didn't come back, so he lost contact with her for some time. Then about 1 – 1 ½ hours later he saw her on the dance floor and they began dancing. He said they exchanged some passionate kisses and she told him she wanted to have sex with him, and she suggested that they go to a hotel. However, Mr. Casilimas said he didn't have money for a hotel, and since he lived with his parents, they couldn't go to his place. He said Ms. M.L. then said she would pay.

[26] In his mind, Mr. Casilimas was thinking maybe he should go home since he had work the next day, but here was this pretty woman saying that she wanted him and would pay for a hotel. He thought maybe this was the beginning of something, that they could start a relationship. Around 11.30 or 12, he decided he could miss one day of work and have an adventure.

[27] Mr. Casilimas said that he and Ms. M.L. ended up leaving together, and got in a cab. She directed the cab to Eglinton and Marlee, and they continued to talk and kiss. He told her he was the luckiest guy to be with a pretty girl like her, and to have her take him to a hotel. He said she was perfectly normal and he didn't have any trouble understanding her.

[28] When they got out at an apartment building, Mr. Casilimas said that Ms. M.L. got out and paid for the cab. Although there were no hotels around, he thought maybe she was taking him to her house. They kissed again and hugged, and at one point she said she wanted to have sex with him right there on the street. She lay down right in the corner of the street and said let's do it here. Mr. Casilimas said he told her to get up, because he didn't want to do it right there, but then she suggested to go into the bushes, and he said ok.

[29] Mr. Casilimas said they were a bit tipsy, and one time Ms. M.L. stumbled, but he felt that she wasn't drunk at all. He said she knew what she was doing and what was going on.

[30] When they went to the area by the bushes he said they were making out, and he was on top of her and she started to take off her pants and take up her blouse. He assisted and kissed her breast and then they started to have sex for about 5 minutes. He said she was behaving normally and looking into his eyes and kissing him, but then she started to behave strangely and like a different person. He said that at this point he stopped having sex with her and pulled out, and then she passed out.

[31] Mr. Casilimas said that her eyes were a bit open, and he was concerned because she didn't respond to him. As he tried to wake her and put his ear on her mouth to see if she was breathing, the police arrived. He immediately recognized that the situation looked bad, and that the police would think he did something to this girl, so he got up. He said his penis was no longer erect. As he was arrested, he said he called to Ms. M.L. to tell police about him, but police told him not to speak to her or they would taser him.

3. The Applicable Law

[32] The Criminal Code provides that "consent" means the voluntary agreement of the complainant to engage in the sexual activity in question. No consent is obtained where the complainant is incapable of consenting to the activity: see s.273.1. It is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity where his belief arose from recklessness or wilful blindness: see s.273.2.

[33] Furthermore, the definition of consent for sexual assault requires that the complainant provide actual, active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is not consensual: see R. v. J.A., 2011 SCC 28 at para. 66.

[34] The capacity of the complainant to consent is a factual matter to be determined on the evidence in each case. Imprudent decision-making, memory loss, loss of inhibition or loss of control on account of self-induced intoxication does not automatically equate to an inability to consent. In other words, a drunken consent can still be a valid consent. See R. v. J.W.M., [2004] O.J. No. 1295 at paras. 55 and 58; and R. v. Cedeno, 2005 ONCJ 91 at p. 475.

[35] However, the complainant must be able to make a voluntary and informed decision. In order for the Crown to prove a lack of capacity to consent, the complainant must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate. See R. v. L.G., 2007 ONCA 654 at para. 96; and R. v. J.R. at paras. 41-43.

4. Findings and Analysis

4.1 Did Ms. M.L. have the capacity to consent to sexual intercourse around 1.30 a.m.?

[36] Even if I accept that Ms. M.L. was consenting to sexual activity with Mr. Casilimas earlier in the evening at the Comfort Zone when he said she kissed him, sat on his lap and suggested that they have sex, the law requires that there be "actual active consent throughout every phase of the sexual activity": see J.A. cited above, (my emphasis). In this case then, the issue is whether Ms. M.L. had the capacity to consent to sexual intercourse with Mr. Casilimas around 1.30 a.m.

[37] The Crown submits that she did not, because the evidence demonstrates that Mr. Casilimas was actually having sex with Ms. M.L. while she was unconscious. The parties agree that J.A. is conclusive that if Mr. Casilimas was having intercourse with an unconscious woman, there could be no consent.

[38] In the alternative, Ms. Cressman submits that even on Mr. Casilimas' version that he stopped intercourse moments before Ms. M.L. passed out, the Crown has proven that she didn't have the capacity to consent.

[39] I am not prepared to find that the Crown has proven that Mr. Casilimas was having sex with Ms. M.L. while she was unconscious. The strength of such a conclusion must rest on a finding that Mr. Casilimas was actually having sex with her when the police arrived, contrary to Mr. Casilimas' evidence that he had stopped just moments before. Since no officer actually saw Mr. Casilimas having intercourse with her, I can't confidently say that he was. Moreover, I am not prepared to find that Mr. Casilimas' penis was erect when Sgt. Minor saw him stand up, which would suggest that he was indeed "caught in the act". This observation of an erect penis was not recorded in the officer's notes, the night was overcast and dark, and the area was not well lit. Since Sgt. Minor only observed Mr. Casilimas for a very short time before he pulled his pants up, I am not satisfied that this recollection was reliable, more than 15 months later.

[40] However, I find that the Crown's case presents a compelling conclusion that even if Mr. Casilimas stopped having sex with Ms. M.L. before she passed out, she was in no condition to consent at that time. I say so for the following reasons.

[41] Several hours after 1.30 a.m., Ms. M.L. still had a blood alcohol content of 170 mg of alcohol in 100 ml of her blood, which is more than twice the legal limit permitted to operate a motor vehicle. I agree with the Crown that I can take judicial notice of the fact that the majority of humans eliminate alcohol in a range of 10-20 mg of alcohol per 100 ml of blood per hour, and also that after rising relatively quickly during the first 30 minutes or so after the last drink, a person's blood alcohol content generally hits a plateau for a period of up to two hours: see R. v. Paszczenko; R. v. Lima, 2010 ONCA 615 at paras. 61-66. Accordingly, it is fair to conclude that if Ms. M.L.'s blood alcohol content was 170 at 5.53 a.m., it could only have been higher at 1.30 a.m.

[42] A report from the Centre of Forensic Sciences (CFS) further indicated that cocaine, ketamine and GHB were detected in Ms. M.L.'s urine, suggesting that she had used cocaine and ketamine, as well as ingested GHB, some time prior to 5.53 a.m. The report from the CFS explained that:

• Cocaine is a central nervous system stimulant used recreationally for its euphoric effects;

• Gamma-hydroxybutyrate (GHB) is a central nervous system depressant available by prescription for the treatment of narcolepsy and used recreationally for its euphoric effects;

• Ketamine is used clinically for its anesthetic properties and it is also used recreationally for its hallucinogenic and euphoric properties.

[43] Therefore, although there was no expert evidence called in this case, there is a common sense inference that Ms. M.L. had consumed a large quantity of alcohol prior to 1.30 a.m., as well as taken drugs. This was consistent with her intent to "get drunk and forget about life" that evening. It also fit with the evidence that when viewed on video sometime after 1.00 a.m., Ms. M.L. was off balance and unsteady on her feet, and that by 1.30 a.m., she had passed out completely.

[44] Mr. Viccari's observation of Ms. M.L. lying prone on the grass sometime after 1 a.m. further suggests that there was something wrong with her co-ordination and/or her judgement at that time. Since it had been raining and the grass was wet, this was not normal behaviour. Moreover, when Mr. Casilimas was shouting at Ms. M.L. to get up off the grass, it appeared that there was something obviously wrong with what she was doing, even from Mr. Casilimas' perspective.

[45] However, by far the most compelling and dramatic evidence of Ms. M.L.'s state of incapacity came moments after Mr. Casilimas said they had just been engaging in consensual intercourse. At that point, she passed out into a state of unconsciousness so profound that Sgt. Minor thought that she was dead. Her eyes were glassy and unblinking, she was catatonic and unresponsive to pain stimulus. When officers were able to revive her, she was initially unable to stand, unable to speak and her eyes were rolling back into her head. When she could speak, her speech was very slurred and she was incoherent beyond being able to tell officers her middle name. Her pants were soaked and pulled down, and she appeared to have no idea of the circumstances she was in.

[46] In light of this evidence, I find it is impossible to believe Mr. Casilimas' evidence that minutes before, Ms. M.L. was perfectly normal and not drunk at all. Moreover, taking into account that she seemed to have no idea of the circumstances she was in, I can't find that she was capable of consciously evaluating whether she was consenting or not.

[47] Therefore I am satisfied beyond a reasonable doubt that Ms. M.L. was incapable of consenting to intercourse with Mr. Casilimas at around 1.30 a.m.

4.2 Did Mr. Casilimas honestly but mistakenly believe Ms. M.L. was able to consent?

[48] In some respects I found that Mr. Casilimas was a plausible witness. Taking into account Ms. M.L.'s evidence that she might have consented to some sexual activity with him, it's not implausible that the two of them could have danced and kissed at the Comfort Zone, or even that she could have said she wanted to have sex with him. Since it appears reasonable that it was Ms. M.L. who directed the taxi to the area of Marlee and Eglinton where she lived, it's possible that she did indeed suggest that they go somewhere to have sex.

[49] However, what was implausible or incredible about Mr. Casilimas' evidence was his insistence that she was not drunk, she was normal, or at most she was a bit tipsy. Indeed, Mr. Casilimas said that he had never even seen her with a drink at all that night. In light of Ms. M.L.'s blood alcohol content and the length of time that Mr. Casilimas spent with her at the Comfort Zone, that seems hard to believe.

[50] Moreover, Mr. Casilimas' account of Ms. M.L. as a willing and engaged participant in mutual sexual activity at 135 Marlee was undermined by Mr. Viccari's impression that she was wiggling and trying to break free of Mr. Casilimas' arms. As Mr. Viccari put it, their embrace did not seem mutual from his perspective, and he felt that she was in trouble. While it's true that Mr. Viccari was a stranger to the parties and didn't know what their relationship was, his sense that something was wrong persisted throughout each of his opportunities to observe Mr. Casilimas and Ms. M.L., and contradicted Mr. Casilimas' evidence that everything was fine.

[51] Mr. Casilimas' description of Ms. M.L. as an active and engaged participant in sex also seemed at odds with his own acknowledgement that she passed out cold in the midst of the act. Considering also that the officers said that when they first arrived she appeared dead or catatonic; and then as she slowly came to, that she was unable to stand or speak; and finally when she started to revive, that she was crying, mostly incoherent and whimpering -- it is unbelievable that she was engaged and responsive just moments before as he described.

[52] In that regard, Mr. Casilimas' evidence that everything was "fine" and she "knew what she was doing" was also inconsistent with even his own description of what happened in the area of 135 Marlee. First, he said that although there were no hotels in the area, he thought that maybe she was taking him to her house. Yet, it seems that they were in the area for at least 30 minutes and she never took him anywhere. Second, instead of taking him to a hotel or her house as he thought she might, Ms. M.L. actually lay down in the wet grass and purportedly wanted to have sex right there. Since even he admitted that he had to tell her to get up because having sex in the middle of the street was not a good idea, it seems incredible that he didn't realize she was far too drunk to be making rational decisions. Finally, Mr. Casilimas himself agreed that he knew she was stumbling at the time they were depicted on video in front of 135 Marlee.

[53] In that context, I find I don't believe Mr. Casilimas really thought that Ms. M.L. was in any condition to consent to sex with him at 135 Marlee.

4.3 Wilful Blindness

[54] I agree with the Crown that if Ms. M.L. was incapable of consenting, and if Mr. Casilimas knew she was incapable of consenting, there is no defence to the charge of sexual assault.

[55] However, even if Mr. Casilimas did fool himself into believing Ms. M.L. was capable of consenting to have sex with him, I think that his situation was a classic case of wilful blindness. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries: see R. v. Briscoe, 2010 SCC 13 at paras. 21-24.

[56] Here, Mr. Casilimas seemed to know that his situation with Ms. M.L. was too good to be true from the moment he got in the taxi with her; as he put it, here was a pretty girl who wanted to pay for a hotel room to have sex with someone she didn't even know. And, again by his own account, he really didn't know anything about her except that she was someone from Romania who had a cute little accent who wanted to have sex with him. And yes, he was honest that he did want to have sex with her.

[57] In these circumstances, the evidence painted a clear picture of Mr. Casilimas wanting to have sex with Ms. M.L. so badly that he was prepared to shut his eyes to what he knew: that the hotel she mentioned wasn't there; that she didn't invite him to her house as he thought she might; that they wandered around in the area of Marlee and Roselawn for at least half an hour without going anywhere; that she was stumbling in front of 135 Marlee; and that she was acting so irrationally that at one point she lay down on the wet grass near the street and said, let's do it here and he had to shout at her to get up.

[58] In other words, it's a compelling conclusion that Mr. Casilimas wanted to have sex so badly that he shut his eyes to what he knew was Ms. M.L.'s irrational, intoxicated behaviour. Therefore, even if he honestly fooled himself into believing she was consenting, wilful blindness as set out in s.273.2 precludes this defence.

5. Summary and Conclusion

[59] In conclusion, I find that the Crown has proven beyond a reasonable doubt that Ms. M.L. did not have the capacity to consent to sexual intercourse at around 1.30 a.m. on May 29, 2011. Further, I don't believe that Mr. Casilimas honestly thought Ms. M.L. was in any condition to consent at that time. Even if he did, it was because he was wilfully blind to what he really knew: that she was too intoxicated and irrational to understand what she was doing. The gravamen of the offence is that he had sex with her in any event.

[60] Therefore, there will be a finding of guilt.

Released: to the parties on November 5, 2012; in court on November 21, 2012

Signed: "Justice Leslie Pringle"