WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Parry Sound

Date: 2013-03-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Keith Butler

Before: Justice André L. Guay

Heard on: January 3 and 4, 2013

Reasons for Judgment released: March 7, 2013

Counsel:

• Wesley D. Beatty, for the Crown
• Michael E. Thurston, for the accused Keith Butler

GUAY J.:

DECISION

[1] The accused, Keith Butler, was charged with sexually assaulting S.M. on March 2, 2012. He pleaded not guilty. The trial took place on January 3 and January 4, 2013. The Crown called four witnesses, including the investigating police officer. The accused called no witnesses and did not testify.

1: EVIDENCE OF THE COMPLAINANT, S.M.

[2] The complainant, S.M., was the first witness for the Crown. She is now 17 years of age, but at the time of the events in question, she was 16 years of age. At that time, the accused was approximately 28 years of age.

[3] S.M. testified about how, at around 5:30 p.m. on March 2, 2012, she called her girlfriend, N.G., to hang out. The girls met up in downtown Parry Sound, a small town located on Georgian Bay in Lake Huron, Ontario. Shortly thereafter the girls ran into the accused and he invited them to his apartment for drinks. After bringing them there, he went to get some liquor at the local LCBO. At the time, the accused was with his friend, James Campbell.

[4] Shortly after the girls arrived at the accused's apartment, James Campbell met V.B. and invited him to join him, the accused and the girls at the accused's apartment. In their testimony, S.M., N.G. and V.B. agreed that there was no drinking at the accused's apartment for at least half an hour after they arrived there. As a result of the drinking which took place that night, it was clear that the memory of those present suffered in varying degrees and that some of the details of what transpired that evening escaped them. What seems clear, however, was that the parties started to drink around 6:30 p.m. They consumed either beer, rum or vodka with mixes.

[5] The complainant and her friend left the accused's apartment during the evening for an unspecified time. This was before the heavier drinking started. The evidence of the witnesses seems consistent on this point. What is also clear from the evidence is that the complainant clearly had either too much to drink, or, when absent from the apartment with her friend, N.G., ingested some other substance which made her highly intoxicated or impaired. While the complainant suggested that she had only had a few drinks, the evidence of the Crown's witnesses established that she had consumed much more alcohol than she acknowledged.

[6] The complainant testified that she had a good memory of the events that evening until she became sick from the alcohol she consumed. She does not remember much about what happened after she was taken from the kitchen to the bathroom to deal with her condition, except for the fact that when she left the bathroom, she went to lie down on the accused's bed. She was alone in the bedroom for a while after she lay down wearing her bra, a t-shirt and her friend N.G.'s pyjama bottoms.

[7] The complainant testified that she remembered waking up at around 8:00 a.m. the following morning, March 3. She found the accused lying beside her in the bed. Her friend, N.G., it was determined, had spent some of the night in the same bed, but had left the bed before morning to go and lie down on the living room couch. The complainant soon formed a suspicion that something of an unwanted sexual nature had happened to her during the night. She seems to have formed this suspicion in her discussions with N.G. prior to leaving the accused's apartment later that morning. At the time, there did not appear to be much physical evidence that anyone had forced himself on her during the night. Subsequent forensic analysis of her borrowed pyjama bottoms did, in fact, fail to disclose the presence of either male saliva or semen on this garment.

2: TEXT MESSAGES BETWEEN THE COMPLAINANT AND THE ACCUSED

[8] While, as noted earlier, the complainant admitted to not recalling much about what happened after she lay down in the accused's bed later in the evening, she did provide the court a transcript of text messages exchanged between herself and the accused on March 3, the day following the party.

[9] The introduction of the text messages transcript was opposed by counsel for the accused on the basis that its authenticity could not be established. To that end, the Crown called O.P.P. Constable Jason Brittle, the investigating officer in the case, to testify about it.

[10] Constable Brittle testified that the document was a typed version of text messages which he read into the record from the complainant's cell phone during the course of her videotaped statement given to him on March 6, 2012. Officer Brittle noted that the complainant told him about the text messages exchanged between herself and the accused on that occasion. She provided her cell phone, which she had brought to the interview, to him. On it, Constable Brittle located the text messages in question and read them into the record. Officer Brittle then explained how he subsequently reviewed the recording of the complainant's videotaped statement and typed out the text messages thereon, producing the document before the court. These messages, he stated, were accurately recorded by himself except perhaps for the capitalization of certain words.

[11] Apart from the issue of the document's authenticity, there was concern that the document might contravene the rule against oath helping. The complainant testified that she had erased other text messages between herself and N.G. and between herself and the accused exchanged around the same time as the text messages in the document produced by Constable Brittle. Even though the accused did not testify, it was acknowledged by the complainant that the accused had in one or more of those messages denied any sexual impropriety between himself and her during the evening in question. The complainant's evidence and that of N.G. suggested that the erased text messages were messages mainly exchanged between the complainant and N.G. and that these text messages dealt with the complainant's concerns about the accused's conduct on March 2 to March 3, 2012.

[12] While I accepted that in one or more of the erased text messages, the accused denied that there had been any sexual impropriety on his part with the complainant, I concluded that the transcript of the text messages between the complainant and the accused produced by Constable Brittle was both probative and reliable and that the document could be introduced into evidence for the truth of the comments made by the accused. Because the complainant was available to testify under oath and her evidence about the text messages between herself and the accused was the best evidence available to the court, I ruled that the text messages sent to the accused by the complainant should not be received into evidence to establish the truth of their content. Any attempt to bolster the complainant's credibility by the use of the transcript was inacceptable and the text messages sent by the complainant to the accused were inadmissible except as a part of the "res gestae".

[13] A review of the transcript of the text messages (filed as Exhibit 4) indicates the complainant's anger arising from her belief that the accused had had sexual intercourse with her without her consent during the early morning hours of March 2 to March 3. Her initial concern seems to have been that the accused might have infected her with a sexually transmissible disease. The accused's response to the complainant's concerns and allegations suggested that there had indeed been sexual contact between himself and her on the occasion in question, but that she ought not to worry about it as he did not believe himself to have a sexually transmissible disease which could infect her.

[14] While the accused did not wish to discuss the matter at length with the complainant on the occasion of the text exchanges between them, and while he did not explicitly admit to having sexual intercourse with her, I find that a plain reading of his text messages to her suggests that whether or not he physically penetrated her, there was sexual contact between him and the complainant during the night of March 2 to March 3, 2012.

3: EVIDENCE OF N.G.

[16] N.G. told the court that she was 18 years of age at the time of the events on March 2, 2012. She indicated that the party which she attended at Keith Butler's apartment got out of hand and that she did not know how to stop what was happening. It was clear from her evidence that this party had not been planned and that it had occurred as a result of a chance meeting between herself, the complainant and the accused. It was clear that the girls were looking for fun and hoped to find it in the company of the accused, who was with his friend, James Campbell, when they met up with him.

[17] N.G. indicated in her evidence that she intended to stay the night at the accused's apartment as a result of the anticipated drinking there. This evidence makes sense when one considers her subsequent evidence and that of both V.B. and S.M. that the girls left the accused's apartment at some point during the evening of March 2 to go to N.G.'s home to get pyjama bottoms for S.M. to wear. S.M. testified that she decided to get pyjamas when she realized that she would be drinking and not likely return home that evening herself.

[18] N.G. recalled both herself and S.M. retiring to the apartment bathroom for a considerable amount of time (one hour or more) during the course of the evening. Her evidence indicated that S.M. became highly intoxicated following the visit to N.G.'s home to fetch pyjama bottoms which S.M. needed to spend the night at the accused's apartment.

[19] N.G. testified that not a lot of a sexual nature occurred prior to the departure of V.B. and James Campbell from the accused's apartment, with the exception of the accused's flirting with S.M. during the course of the evening. According to N.G., the complainant was not interested in the accused or his flirtation. She testified that the complainant told the accused to back off and that she did not want anything to do with him. According to N.G., after the two fellows left, the accused took off her clothing and forced himself sexually on her. She was reluctant to say whether this was by way of fellatio or full blown intercourse, but she made it clear that she had not consented to his advances.

[20] N.G. testified on two important points during the trial. The first was about whether the accused had had inappropriate sexual contact with the complainant while V.B. and James Campbell were still present in his apartment. Her evidence on this point was contradictory to that of V.B., the only one of the two young men present in the accused's apartment that evening to testify. She had no recollection of being in the apartment kitchen with the accused and the complainant while the complainant lay unconscious on the floor with the accused touching her inappropriately over her clothing in the vaginal area. N.G. testified that she had been in the kitchen once or twice with the complainant but could not recall the alleged, sexually inappropriate events there between the accused and the complainant.

[21] The second important point on which N.G. testified was a comment by V.B.. V.B. testified that during the course of the evening he overheard the girls talking about a planned sexual threesome involving the accused later that evening. When asked about this allegation, N.G. stated that she had no idea why V.B. would say such a thing. N.G. testified, however, to the presence of an unopened box of condoms on the accused's bed, although she was not able to say whether this box of condoms had been opened during the course of the evening.

[22] In assessing N.G.'s evidence, it would be reasonable to suspect that the events of the evening left her with some very negative feelings towards the accused. She testified that what the accused had allegedly done with the complainant did not make her envious. It should be noted, however, that N.G. and the accused had cohabited for a five-month period prior to Christmas 2011 and that it was the accused who had broken off their relationship. N.G. maintained, however, that until that evening she had continued to consider the accused a friend. She was certainly suspicious about the accused's conduct towards the complainant and, in all likelihood, encouraged the complainant to believe that the accused had sexually assaulted her during the early morning hours of March 3. While, therefore, a risk of bias on N.G.'s part in testifying against the accused did exist, I do not find that bias played a significant role in her testimony. Her evidence was not shaken on cross-examination and was given in an even-handed manner and, insofar as what happened to her friend, contained no exaggerated or unfounded allegations. While it was evident that N.G. did consume alcohol that evening, there is no evidence to suggest that she did so to the degree that her then friend, the complainant, did or that her consumption rendered her unable to recall the events of that evening with the clarity needed to make her recollection credible.

[23] What one can take from N.G.'s evidence is the fact that the complainant was increasingly, highly intoxicated as the evening of March 2 unfolded and that by the time the complainant was helped from the bathroom to the accused's bedroom, she was not stable on her feet. After she lay down on his bed, she appeared to be unconscious and unable to control herself. N.G.'s impression of the complainant was corroborated by V.B..

4: EVIDENCE OF V.B.

[24] V.B. is 21 years of age and is currently unemployed. He worked with the accused at Harvey's in 2011 and early 2012. There had been some friction between them and there was, in fact, a work incident between them which caused V.B. to quit his employment. The accused had pushed V.B. into a stove, and the manager would not deal with the personal risk to him posed by that incident, so he decided to leave his employment at Harvey's.

[25] Early on the evening of March 2, 2012, V.B. was invited by James Campbell to come to the accused's apartment to have drinks. It is not clear whether he was told there was going to be a party, but as a result of James Campbell's invitation, V.B. purchased beer and Captain Morgan rum to bring with him to the gathering. V.B. testified that notwithstanding the previous incident between himself and the accused, he accepted the invitation to come to the accused's apartment. He further noted that he gave the bottle of Captain Morgan rum he purchased to the accused as a sort of makeup gift. If V.B. had any recrimination towards the accused on March 2, it appears that on that occasion he wanted to make amends with him.

[26] According to V.B., what transpired during the course of the evening reignited his latent unease with the accused. When the complainant began to show signs of serious intoxication, V.B. became concerned about her welfare and the risk this posed to her safety in the company of the accused. The fact that V.B. believed N.G. was cohabiting with the accused at the time perhaps led him not to be as concerned about the welfare of N.G.. It is reasonable to infer that his apprehension about what the accused might be intending to do that evening probably stemmed from his past experience with the accused at Harvey's and that while he was prepared to forgive, he was not necessarily prepared to forget the accused's earlier behaviour.

[27] At some point during the course of the evening, V.B. went into the kitchen with James Campbell to get himself a drink. While his evidence was that he had a number of drinks during the course of the evening there is no suggestion that he was intoxicated and not in control of his behaviour. V.B. testified that when he went into the kitchen to get a drink, he observed some very concerning activity between the accused and the complainant. James Campbell had preceded him into the kitchen by a few feet. When V.B. entered the kitchen, he saw the complainant lying in an apparent state of unconsciousness on the floor, with the accused less than a foot away from her, one of his hands supporting himself against a nearby kitchen wall and the other between the complainant's legs over her vaginal area.

[28] V.B. testified that just as he and James Campbell entered the kitchen, the accused removed his hand from the complainant's vaginal area and placed it over to her hip. He said that he knew right away something was wrong when he came upon the scene. As noted earlier, while he testified that N.G. was standing at the counter looking down on the complainant and the accused while this was going on, N.G. testified that she had no memory of this episode. V.B. also testified that when the accused moved his hand away from the complainant's crotch, her eyes rolled back. It was at this point that he and James Campbell offered to help move the complainant to the bathroom in order to deal with her condition. As it turned out, it was the accused, James Campbell and N.G. who assisted the complainant to the bathroom and not V.B..

[29] V.B. recalled that it was the accused who was eventually left alone with the complainant in the bathroom, for a considerable length of time. This and the fact that the accused closed the bathroom door, leaving only himself and the complainant in the bathroom, alarmed V.B.. He suspected that the accused was engaging in further inappropriate sexual activity there with the complainant. In support of his belief, V.B. noted, he saw a wet stain on the complainant's pants when she emerged from the bathroom to go and lie down on the accused's bed.

[30] When asked how the complainant was dressed, V.B. first testified that when he saw the complainant on the kitchen floor, she seemed to be wearing tight-fitting clothing, such as that which would be worn by a gymnast. When N.G. testified on this point, her evidence suggested that the complainant was wearing plaid pyjama bottoms early in the evening. This would have included the time of the alleged assault in the kitchen.

[31] I accept N.G.'s evidence that when the girls first came to the apartment, the complainant was wearing dark jeans. I take judicial notice of the fact that young girls in our society do not generally wear loose fitting clothing and, in particular, loose-fitting jeans. The evidence made it clear that at some point the complainant did change into pyjama bottoms and a t-shirt. I accept the complainant's evidence that this occurred when she went to lie down on the accused's bed after leaving the bathroom where she had experienced the symptoms of severe alcohol intoxication.

[32] I accept the evidence of V.B. as to how the complainant was clothed during the kitchen episode, although I do not think that it makes a great deal of difference to the reality of what was happening to her. While it has been suggested that V.B. only had seconds to observe what he claims to have seen upon entering the kitchen during this episode, his evidence on cross-examination was basically unshaken. He provided sufficient detail as to what he witnessed on that occasion to make his recollection of events credible.

[33] As was the case with N.G., it is clear that V.B. consumed alcohol during the course of the evening at the accused's apartment on March 2, 2012. Like her, there is no evidence that his consumption was so excessive that it rendered him unable to recall the events of the evening with the clarity and detail required to make his evidence credible. From the tenor of his evidence, one can conclude that his memory of events that evening was better than that of both the complainant and N.G..

[34] Before leaving it, however, there is one part of V.B.'s evidence which must be commented on. That is his comment that he heard the complainant and N.G. mention or say that they would participate in a sexual threesome that evening. N.G. testified that she did not know why V.B. would say such a thing and where the comment came from. I think it is reasonable to surmise that if this comment was made by one or both of the girls, it may have been a matter of fantasizing on their part. In considering the whole of the evidence, I find that while this comment may have been made, no such activity had been contemplated by the complainant and N.G.. Even if it had, this still does not resolve the issue of consent which I will now address.

5: CONCLUSION

[35] The offence of sexual assault requires three elements. First, there must be an act of touching between the accused and the complainant. Secondly, this touching must be of a sexual nature. Thirdly, there has to be the lack of consent on the part of the complainant (see R v. Ewanchuk, 131 C.C.C (3d) 481 (SCC)).

[36] Lack of consent can be established either by the complainant's refusal to consent to sexual contact or by sexual contact under circumstances where the complainant is unable to give her or his consent and the accused engages in sexual contact notwithstanding the complainant's incapacity. This issue has been dealt with in prior cases, including R v. Jensen (1996), 106 CCC (3d) 430; 47 CR (4th) 363; 90 AC 183, R v. M.A.P., (2004) 2004 NSCA 27, N.S.J. No. 55, 200; NSCA 27, 221, N.S.R. (2d) 370; R c. St. Laurent (1993) J.Q. No. 2257, (1994), R.J.Q. 69, 90 C.C.C. (3d) 291 and R v. J.W.M. (2004) O.J. No. 1295; (2004) O.T.C. 290, 61 W.C.B. (2d) 223.

[37] In M.A.P., the Nova Scotia Court of Appeal upheld the trial judge's understanding of the concept of the capacity to consent as including the ability to distinguish right from wrong, to appreciate the quality and nature of what was being done and having an "operating mind" (see paragraph 20 of the decision).

[38] At paragraphs 98 and 99 of the Quebec Court of Appeal's decision in St. Laurent, Fish J.A. stated that "As a matter of both language and law, consent implies a reasonably informed choice, freely exercised" noting that "No such choice has been exercised where a person engages in sexual activity as a result of fraud, force, fear or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation." "Consent", the learned Justice concluded, "…is thus stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will."

[39] In rejecting an appeal from conviction in J.W.M., Hill J. of the Superior Court of Ontario addressed the issue of capacity to consent to sexual activity explaining that "While capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting to capacity to consent to sex is entirely unpersuasive". This was particularly so, he stated with respect to the matter before him "in light of the evidence of the complainant's extreme intoxication including lack of consciousness after midnight" (see paragraph 56 of the decision).

[40] Of particular note in the present matter is the Jensen case, a 1996 decision of the Ontario Court of Appeal. In Jensen, the complainant was intoxicated when the accused had sexual intercourse with her. Sometime later, he admitted to her that he had had sexual intercourse with her. Her evidence was that she had refused her consent and that she had believed for a time that the events surrounding the assault might have been a dream.

[41] The trial judge convicted the accused on the alternative bases that either the complainant had not consented or she had been unable, because of her condition, to consent and there had therefore been no consent on her part to the accused's sexual activity. Dismissing the accused's argument that the defence of honest mistaken belief in consent was available to him, even if intoxicated, the Court reasoned that there was evidence which suggested the complainant had had the capacity to refuse her consent and that the fact that she had not done so suggested the possibility that she had "likely" consented. One could not, the Court maintained, argue in the same breath that there had been a refusal to consent to sexual intercourse and at the same time an inability to consent because of lack of capacity to do so, this suggesting that there was some doubt in the trial judge's mind that there had indeed been a refusal of consent.

[42] In Jensen, the Court referred to the case of R v. Sarson, (1992), 77 C.C.C. (3d) 233, where the accused was convicted, as "one of the very few cases where lack of capacity to consent has been the basis of a conviction for sexual assault" (see p. 9). The facts in Sarson are not dissimilar to those in the present case. In both Sarson and the present matter, the complainants were clearly under an extreme incapacity to consent to anything, let alone an intimate personal encounter of a sexual nature.

[43] In the present case, the evidence suggests that the complainant was so ill from ingesting excessive amounts of alcohol that she had to be assisted to move from the kitchen floor to the bathroom and subsequently from the bathroom to the bedroom. There, she went in and out of consciousness, subsequently having little recollection of what happened to herself and to others after she lay down on the accused's bed. Having refused his advances when she was still in a position to do so the evening before, it concerned her greatly when she awoke the following morning to find the accused lying in the same bed with her.

[44] I accept the evidence of V.B. about what he saw in the kitchen during the evening of March 2, 2012. Although that event does not seem to have gone on for a long period of time and although this witness' view of it was brief, his detailed description of what happened leaves me with no doubt that the accused engaged in non-consensual sexual activity with the complainant on that occasion.

[45] Further to this, and despite the lack of forensic evidence establishing sexual contact between the accused and the complainant during the night of March 2 – March 3, 2012, I find, on the whole of that evidence which I accept, that the accused also had sexual contact with the complainant on that occasion to which she also did not consent. I find that the complainant was incapable of consenting to sexual contact with the accused because she was in a state of extreme intoxication which prevented her from doing so. I have based this finding on the following facts:

• The accused had non-consensual sexual contact with the complainant on the kitchen floor earlier that evening;

• The accused made unsolicited advances of a sexual nature to the complainant during the course of the evening of March 2, 2012;

• The accused forced himself sexually on his former girlfriend, N.G., on the evening of March 2 after his two male friends, James Campbell and V.B., decided not to re-enter his apartment after their trip to the convenience store;

• The accused had available for his use on his bed a box of condoms;

• The accused slept in the same bed as the complainant during the night of March 2 to March 3, this being his bed and the bed on which the complainant had gone to lie down after she became ill from drinking alcohol to excess. He was found there on the morning of March 3 alone with the complainant when she woke up;

• The text messages sent by the accused to the complainant lead to the inescapable conclusion that the accused had engaged in sexual activity with her during the night of March 2 to March 3, 2012 (i.e. "at 1point me u and N.G. were making out together so just call me so we can talk for a minute. and about being clean, I don't sleep around like that … I swear to you I'm clean on my life I've slept with three girls since I moved here and the majority of that was with N.G.. u don't have to worry about that" etc).

[46] As a result, then, of the evidence presented in this case, I find the accused guilty of the offense of sexual assault pursuant to section 271 of the Criminal Code of Canada.

Released: March 7, 2013

Signed: "Justice André L. Guay"