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(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (4.1), read as follows:
486.— (4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.
Court Information
Court File No.: 130451
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
H.A.
Before: Justice P.T. Bishop
Heard on: April 17, 2013 and April 22, 2013
Reasons for Judgment released on: April 30, 2013
Counsel:
- Peter Keen, for the Crown
- Mark Schaub, for the accused H.A.
BISHOP J.:
Charges
[1] H.A. was charged as follows:
On or about the 1st day of December, 2012 at the First Nation of Lac Seul in the said region did commit a sexual assault on J.B. contrary to Section 271 of the Criminal Code;
On or about 1st day of December, 2012 at the First Nation of Lac Seul in the said region, did for a sexual purpose touch J.B., a person under the age of sixteen years directly with a part of his body, to wit his penis, contrary to S.151 (a) of the Criminal Code;
On or about the 1st day of December, 2012 at the First Nation of Lac Seul in the said region, without lawful excuse did enter the dwelling house of R. B. situated at K[…] with intent to commit therein an indictable offence contrary to S.349 (a) of the Criminal Code;
On or about the 1st day of December, 2012 at the First Nation of Lac Seul in the said Region, did being at large on his Undertaking given to a Justice and being bound to comply with a condition of that Undertaking directed by the said Justice fail without lawful excuse to comply with that condition to wit; refrain from the purchase, possession or consumption of alcohol and intoxicating substances contrary to Section 145(3) of the Criminal Code;
On or about the 1st day of December, 2012 at the First Nation of Lac Seul in the said region, did being at large on his Undertaking given to a justice and being bound to comply with a condition of that Undertaking directed by the said Justice fail without lawful excuse to comply with the condition to wit reside at […] Drive, W[…] with father A.A. at F[…], Lac Seul, contrary to S.145(3) of the Criminal Code;
On or about the 1st day December, 2012 at the First Nation of Lac Seul in the said region, did being at large on his Undertaking given to a Justice and being bound to comply with a condition of that Undertaking directed by the said Justice fail without lawful excuse to comply with that condition to wit be in that residence between 5:00 p.m. to 7:00 a.m. except for emergency medical purposes, school activities or unless accompanied by A.A. contrary to S.145(3) of the Criminal Code.
Background
[2] The Crown elected to proceed by way of indictment with respect to the sexual assault contrary to Section 271 CC and chose not to proceed with counts five and six.
[3] At the commencement of the trial, the accused brought a Section 276 Application to introduce evidence and cross-examine the complainant about a prior sexual relationship with the accused as her statement given to the police denied any such relationship.
[4] The Crown agreed that the pre-conditions of S.276 of the Criminal Code had been met and the accused was permitted to cross-examine the complainant with respect to her prior sexual conduct with the accused.
[5] At the conclusion of the Crown's case, the Crown requested that the unlawfully in a dwelling charge contrary to S.349(1) CC charge be dismissed and that the sexual interference charge contrary to S.151(a) CC be withdrawn.
Evidence of Heather Mesich
[6] Ms. Mesich is a registered nurse who works at the Meno-Ya-Win Health Centre.
[7] At approximately 9:21 p.m. on December 1, 2012, the complainant was admitted to the hospital exhibiting severe discomfort. Ms. Mesich noted injuries to her left side in the vaginal area and observed a slight abrasion approximately two centimetres in length and some slight bleeding, which could be explained possibly by blunt force trauma inflicted at a ninety degree angle. She stated it was consistent with a rough rubbing of the skin. There also was some bleeding in the vaginal opening.
[8] The wall of the vagina at approximately the three o'clock location showed some injury to the labia minor and the vagina was too tender to insert a speculum without causing distress. The attempts to insert the speculum were abandoned by the physician.
[9] Swabs were taken from the vaginal area and the anus following the instructions in the sexual assault kit. The Forensic Evidence Form was filed as Exhibit One. A swab was taken externally on the vaginal area and another swab was inserted into the rectum. The vaginal swab was tinged with blood. The complainant stated that she was unconscious at the time of the occurrence.
[10] The forensic report of Tara Brutzki of the Centre for Forensic Sciences Northern Regional Laboratory was filed as Exhibit Two which disclosed that the accused's semen was located inside the complainant's rectum. This report was filed on consent without the necessity of obtaining a further DNA warrant for the accused and another DNA sample from his blood.
Evidence of J. B.
[11] J.B. is fifteen years of age. She lives with her mother and her mother's partner.
[12] She has known the accused for approximately eight years and were just friends.
[13] She initially told the police that she had not had sex with the accused before but in cross-examination admitted that she had sexual intercourse with him at the accused's house in July of 2012.
[14] She was consuming alcohol and pop and was not drunk that bad. She was at C.Q.'s residence for approximately six hours and left at 10:30 a.m. and went home.
[15] She sat down and she spit up some blood. She doesn't remember everything. She woke up on her mother's bed and was half-cut, with a sore back and front; referring to her butt and vagina.
[16] She woke up at approximately 6:00 p.m. and saw the accused on the floor beside her mother's bed.
[17] She got out of the bed to change and described her bum as burning and she could not sit down. She felt sick.
[18] She stated that she did not have a clear memory of what happened as she had consumed eight cups of alcohol with mix.
[19] The accused brought a twenty-six ounce bottle of vodka and they were drinking earlier in the day.
[20] She drank six shots of vodka at her house and had eight drinks all together. She walked for about two minutes from C. Q.'s house without shoes in the snow.
[21] She can't remember how much alcohol she had consumed but did not recall giving consent and did not agree to anal intercourse.
Cross-Examination
[22] She denied having a relationship with the accused but it was just a "thing". She admitted not telling the police about having a prior sexual relationship with the accused.
[23] She drank with the accused and he wouldn't take no for an answer. She was supposed to be babysitting her younger siblings and was drinking with the accused. She was at another location and went home at approximately 10:30 a.m. She had four hours of sleep at the P.K. residence and saw K.L., who helped her home, and she passed out at approximately 11:00 a.m.
[24] She did not remember the accused asking if she wanted to have sex. She woke up to the sounds of her mother and her partner being angry and arguing. Her mother's bedroom door was partly open where the incident took place. When she woke up H.A. was lying on his side on the floor.
Evidence of R. B.
[25] R.B. is the mother of the complainant. She went into her own bedroom and found her daughter on her bed passed out.
[26] She then was alerted that something was happening by her other children and she looked into the room and her daughter had her pants down below her knees, it looked like she was passed out and no one else was there.
[27] R.B.'s partner went to the bedroom and the accused was seen on the floor beside the bed. The accused's pants were down around his ankles, he had a bare butt and her partner, G.K. was yelling at the accused and R.B. then phoned the police. She did not give permission to the accused to be in her house.
[28] In cross-examination she conceded that the accused let himself in while all of the inhabitants were asleep because his shoes were off by the front door.
Evidence of Sgt. Dave Tanner
[29] Sgt. Tanner is a police officer with the Lac Seul Police Service and arrived at the complainant's house and found the accused hiding against the side of a building trying to make himself not noticed. He was arrested at 8:47 p.m. and had a strong odour of alcohol on his breath. He was staggering and unsteady on his feet.
Evidence of H.A.
[30] H.A. was nineteen years of age at the time of the occurrence.
[31] He had known J.B. for a few years at high school and was in grade twelve and she was in grade ten.
[32] They had previously had sex in July of 2012 when she came out and stayed at his house for three or four days.
[33] On December 1, 2012 he was drinking and eventually slept at J.B.'s house. She agreed to a few shots of alcohol.
[34] Initially he went to her residence at 2:00 a.m. and he was at that house for twenty minutes. He hoped to find someone to drink with as he had been drinking previously. He went to several houses and drank with other people for about two hours.
[35] Later in the day he saw the complainant being carried back to her residence by K.L. at approximately 10:30 a.m. He and K.L. left the complainant and took off.
[36] Later, he went back to check on J.B. because he was worried about her as K.L. and he had abandoned her.
[37] He entered her residence between 4:30 and 5:00 p.m. and went to J.B.'s mother's room and woke her up by shaking her gently on the shoulder.
[38] He asked if she wanted to do it and she replied "sure". He then asked J.B., "are you alright?" to which she responded "yeah" and he said "are you fine? I want to do it". She replied "sure, fine".
[39] He described having sexual intercourse for approximately ten minutes. She pulled down her pants and underwear and he pulled down his pants and underwear.
[40] He was engaged in vaginal sexual intercourse and she said "stop, it felt funny". They were both laying facing the wall and both facing in the same direction.
[41] He stated that they both fell asleep and then he heard a big commotion outside the bedroom where J.B.'s mother was yelling at her partner.
[42] He jumped up and went out the window and went looking for another party as he wanted to keep drinking.
Evidence in Cross-Examination
[43] The accused stated that he had a clear memory of this incident but he did not have a clear memory of what happened earlier in the day. He hadn't slept in two days. He was intoxicated but had no difficulty communicating with the complainant. He was told by K.L. that J.B. was very intoxicated and he went to her house approximately six hours after he was told that. He arrived at J.B.'s house at approximately 5:00 p.m., took off his shoes at the front door and stated that at the end of the day she didn't seem very drunk, nor did she drink much during the day.
[44] When he arrived at her home he did not know if her parents were there and the bedroom door was partly closed.
[45] J.B. was sleeping under the covers and he had trouble waking her up and she appeared tired. She did wake up and wondered why he was there. He stood by the bed and inquired how she was doing. He stated he wanted to "do it" and her eyes were open and she said "sure".
[46] During the sexual intercourse she was moaning but stated something felt funny. He admitted that he could have penetrated her anus by accident from behind but when he asked her what was wrong she said "nothing" and he continued on with sexual intercourse. He admitted that her eyes were opening and shutting and she was not fully conscious.
[47] He could not recall whether he ejaculated but stated "maybe a little bit" and he was tired. They were both tired. Her eyes were open during sex and that any bleeding must have been an accident and happened when she complained.
Decision
[48] The accused and the complainant had sexual intercourse. The issue is consent. The Defendant submits that timelines are very important as six hours had passed since the time the accused had left J.B. The accused finished drinking at approximately 3:30 a.m. and drank two more drinks until 4:00 a.m. then the complainant went to sleep at P.K.'s house and slept for four hours.
[49] Between 10:30 a.m. and 11:00 a.m. J.B. returned to her home in bare feet as she couldn't find her shoes and was in her words "tipsy and half-cut". She had been drinking with K.L. She went to sleep at approximately 11:30 a.m.
[50] R.B. and her partner, G.K., returned home at approximately 2:30 p.m. and they went to sleep until about 3:15 p.m. G.K. had passed out and to her knowledge no one else was in the house except her other children.
[51] At approximately 5:00 p.m. the accused returned to the residence. He woke up the complainant and at approximately 5:30 p.m. R.B. phoned the police.
[52] J.B. had six drinks with the accused and eight cups of alcohol and mix estimated to be three and one-half to four inches high which started at 2:30 a.m. H.A. showed up at her house with a twenty-six ounce bottle of vodka unannounced.
[53] J.B. woke up at approximately 5:15 p.m. and saw footprints in the snow. She can remember small details and was aware of the anger of her mother for leaving her siblings as she was supposed to be babysitting and also she should not have been drinking.
[54] I have reviewed the case of R v W. (D) (1991), 63 C.C.C. (3d) 397 S.C.C. dealing whether or not the Crown has proven the case beyond a reasonable doubt which can be summarized as follows:
i) If the accused is believed, the Judge must acquit;
ii) If the accused is not believed, there still may be a reasonable doubt as a result of the accused's testimony;
iii) Even if the accused's testimony does not raise a reasonable doubt, there may be a reasonable doubt on the basis of the evidence that is accepted.
[55] Having heard all of the evidence, I have found that the Crown has proven the case beyond a reasonable doubt for the following reasons:
i) The complainant was incapable of consenting due to her high degree of intoxication and which was corroborated by her own evidence that she was passed out when it happened and is consistent with what she told the nurse when admitted to the hospital that she was unconscious.
ii) When the complainant's mother looked at her daughter it appeared that both her daughter and the accused were passed out, her daughter on the bed and the accused on the floor. They were both found half naked.
iii) When J.B. woke up she was sore in the anus and vaginal area.
iv) The accused admitted that when he woke up J.B. her eyes were opening and shutting and she was not fully conscious.
v) There was bleeding in the vaginal area and blood in the anus. I find that the complainant would not have consented to these injuries and further was not capable of consenting notwithstanding that on two prior occasions she had sex with the accused with no difficulty and no injuries.
vi) The complainant was so sore that she could not sit down. It was also so uncomfortable and painful that she would not allow the physician to insert the speculum.
[56] The evidence of Sgt. Tanner indicates that the accused was staggering and unsteady on his feet and had a strong odour of alcohol on his breath.
[57] I do not accept the accused's evidence that the complainant agreed to sexual intercourse as the accused's self-induced intoxication is not a defense to this charge. Further, the accused did not take reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting as she was drifting in and out of consciousness by his own admission. Further, he left the scene when discovered by J.B.'s mother by jumping out of a window purportedly to find others to drink with and was attempting to hide and was still quite intoxicated when found by Sgt. Tanner.
[58] The Court finds that the accused was in no condition to ascertain whether or not J.B. could have consented to his sexual advances.
[59] When confronted with discrepancies, the accused replied with self-serving answers such as "well, maybe a little bit" when referring to whether or not he ejaculated or "if could of happened by accident" referring to anal intercourse. The Court finds on all of the evidence that J.B. did not consent to these sexual interactions.
[60] Based on all of the evidence, the Crown has proven the case beyond a reasonable doubt and a guilty verdict will enter with respect to the sexual assault contrary to Section 271 of the Criminal Code.
Released: April 30, 2013
Signed: "Justice P.T. Bishop"