Court File and Parties
Date: 2013-04-17
Court File No.: 10-04159 Central East Region-Newmarket
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Todd Blanchard
Before: Justice Peter C. West
Evidence heard on: April 15 and 16, 2013
Oral Submissions on: April 17, 2013
Reasons for Judgment Read: April 17, 2013
Counsel
Ms. M.L. Armour — for the Crown
Mr. D. Mideo — for the accused, Todd Blanchard
WEST J.:
Introduction
[1] Mr. Blanchard faces a single charge of sexual assault on March 11, 2010, respecting S.E. The Crown elected to proceed by indictment and Mr. Mideo, on behalf of Mr. Blanchard, elected to be tried in the Ontario Court of Justice.
[2] Mr. Blanchard pleaded not guilty and a trial was commenced on April 15, 2013. The Crown called two witnesses, Ms. Diana Adams, a DASA nurse at York Central Hospital and the complainant, S.E. The defence called two witnesses, K.R. and the defendant, Todd Blanchard. I have carefully reviewed my notes of the evidence and submissions made by counsel.
[3] I have also reviewed the exhibits that were filed. This is essentially a "she said/he said" sexual assault case without any significant supporting evidence. Credibility is the main issue in this case because the complainant and the defendant have given diametrically opposed evidence about the essential facts and circumstances surrounding the events that led to the charge against the defendant.
Factual Background
[4] Ms. Adams examined S.E. on March 13, 2010 at York Central Hospital. She took a number of bodily samples, which were turned over to police. She observed a small linear abrasion between the vagina and anus, which was 0.5 cm in length and 2 mm wide. Ms. Adams testified that the complainant advised her that she was in and out of consciousness during the assault. She was unsure of the number of assailants and could not guarantee there was only one person.
[5] The forensic reports prepared by the Centre of Forensic Sciences, filed as Exhibit 2, found no evidence linking Mr. Blanchard to S.E. as a result of the bodily samples obtained by Ms. Adams, the DASA nurse.
[6] S.E. was a 17 year old high school student in March 2010. On March 10, 2010 she went to a house party with a friend, K.R., from school. She drove to the party in her car, a red 2007 Dodge Charger. They arrived at approximately 9:30 p.m. and she parked on the street. She observed the defendant, Todd Blanchard, smoking a cigarette at the end of the driveway and K.R. introduced her. This was the first time she met Mr. Blanchard.
[7] She was introduced to other people and she sat down in a large brown recliner chair. S.E. testified that she and K.R. had brought a bottle of Sour Puss. She could no longer recall when or how she had the Sour Puss bottle in the trunk of her car. She testified that a friend of hers had bought it a while before this party. She and K.R. both poured a glass of the Sour Puss.
[8] S.E. testified that K.R. told her that she had permission to drink from the alcohol that was in the house and she wanted to do shots. They went into the kitchen and poured some shots of Jagermeister. She thought she had two to three shots. They went back to the living room and she had more shots there, either tequila or vodka. She believed she had two shots in the living room. Then someone brought some Jack Daniels and she had a shot of that. She fell back into the brown chair and fell asleep or passed out.
[9] She next remembered waking up but did not know where she was. It was in a bedroom, the bed was against the wall and there was a window to the right with moonlight coming in. It was dark out. She remembered seeing Todd there. She was lying on the bed fully clothed. She testified that Todd told her she had thrown up on her shirt and was getting her a new one. He proceeded to take off her shirt. Her shirt was off at some point and she remembered a shirt being thrown at her.
[10] She testified that she ended up blacking out again. She next remembered waking up and Todd was over top of her. He was shirtless and she only had her underwear on. She did not know what had happened to the shirt she had been given. She said Todd asked something like either she was too young or on her menstrual cycle or didn't want to be touched and she said all of the above. She was feeling really out of it.
[11] She felt pressure in her vagina and then passed out again. She remembered waking up again and she was lying on her stomach. Todd had his penis in her mouth. She testified that she was out of it and felt like she could not move. She passed out again. When she woke up the next time it was daytime. Todd was sitting on the side of the bed. He was dressed. He told her she had to get up as her friends were on their way, that he had been texting them. She had a white shirt on and her underwear. She asked what happened, she did not have pants and he grabbed a pair of jeans and threw them. She struggled to put them on. She got up and opened the door and saw that she was upstairs in the house.
[12] She went to washroom and had no idea how she got upstairs. She went downstairs to front door and saw K.R. and E.M. It was 1 p.m. She got in E.M.'s car. She couldn't find her keys. It was the only thing that she brought into the house the night before. E.M. drove to K.R.'s house. E.M. washed her hair over the side of the bath tub. S.E. testified she was very upset with K.R. for leaving her there. She kept telling her friend's that something happened and she did not know if they could find out or not but she needed to know because something happened. K.R. told S.E. she would try to find out.
[13] S.E. testified that she kept thinking that something had happened. She wanted to get her car keys back. She went to her Mom's work to get her Mom's house keys so she could get the spare key to her car. She told her Mom that she locked her keys in her car. She could not tell her Mom what had happened.
[14] E.M. got S.E.'s car back from in front of the house. S.E. testified that the whole day was a haze. She got her clothes back either before or after they got the car.
[15] In cross-examination she testified that she was doing best she could in terms of remembering how much she had to drink that night. She recalled going outside and talking to Todd and Kirill, another guy who was at the party, at some point before she passed out. She did not recall flirting with them or whispering in their ears and nuzzling up to their necks. She did not recall K.R. showing off her flexibility and fact that she is double jointed. She did not recall throwing up. She did not recall being moved from the brown chair to a couch or having a blanket put on her.
[16] She did not remember waking up on the couch in the morning. She recalled waking up in the bedroom and it was still dark. She disagreed that Todd woke her up on the couch and told her that she could go lie down in his bedroom.
[17] She remembers asking what happened, did something happen with Todd? He said no she was fine. She did not recall thanking Todd and female about looking after her. She did not recall giving Todd a hug when she left the house. This did not happen. She remembered K.R. texting Todd after they got to K.R.'s house. She asked K.R. to find out what happened. She did not use words "did I have sex with Todd?" I asked her to find out was I taken advantage of. She does not recall if Todd replied. K.R. told her that she had nothing to worry about, everything was fine.
[18] S.E. testified that she asked K.R. to text Todd about her car keys. She does not know the number of texts K.R. sent about the keys. She did not recall how long she stayed at K.R.'s house.
[19] She told her Mom that she locked her keys in her car. Her Mom knew she was out with K.R. but she does not recall if her Mom knew she was going to a party. She could have told her Mom that she lost her keys at a party but she did not. The whole situation was shameful enough. Later she testified that she did not lose her keys as they were removed after she passed out. She does not recall them being taken.
[20] She agreed that she told the nurse she was in and out of consciousness. She did not recall telling the nurse that she was unsure of the number of assailants. She only recalls Todd. She remembers telling K.R. that she had a feeling something happened.
[21] Prior to drinking the Jack Daniels she felt okay. After she had the last shot she felt really tired, sat back in the chair and passed out. She asked her friend to text Todd because she wanted to know if what she thought happened had happened.
[22] K.R. was called by the defence. She knew Todd Blanchard from working at the mall. She worked at a punk clothing store and he worked at T-Booth, a cell phone store. They would have cigarettes together outside. She considered Todd to be a friend. Todd had invited her to hang out with him but she was always busy. They were a little more than acquaintances but not tight friends.
[23] On March 10, 2010, she bumped into Todd and he invited her to a party at his place. K.R. said she would get back to him. She called him back and said that she and her girlfriend S.E. would come to the party. S.E. drove to the party. There were other people at the party. When they first arrived she was hanging out with two other ladies who were there. They were sitting at a dining room table. They had something to drink. She does not recall how many drinks she had but it was not enough to black out.
[24] K.R. did not bring her own alcohol. S.E. had told her she would not be drinking as she was driving. K.R. went to the washroom and when she came back S.E. had a drink in her hand. She did not know how many drinks S.E. had. When K.R. was ready to go, S.E. was passed out and drooling in a chair. She had been fine prior to that. K.R. saw S.E. outside having a smoke and there were two other guys but not Todd.
[25] S.E. was passed out between one and a half to two hours after they had arrived at the party. K.R. called her friend E.M. to pick her up because S.E. was passed out. She called S.E.'s phone in the morning but there was no answer. She called Todd's phone. She provided all the texts from her cell phone between her and Todd to the police.
[26] During K.R.'s evidence she testified that after she gave her statement to the police March 25, 2010 and she turned over the texts she never listened to the audio recording or saw the texts. A recess was taken to allow her that opportunity.
[27] K.R. now recalled that S.E. was all over a couple of guys outside, following them and falling on them and clinging to them. She saw that S.E. was getting intoxicated during the evening. She left around 1 a.m. She waited around trying to see if S.E. would sober up and she gave her bread and water but it did not help. She was in the chair blacked out completely. Some of the girls at the party said they would look after her.
[28] When she picked up S.E. at Todd's house, S.E. gave Todd a close hug.
[29] The texts between her and Todd appeared to be accurate and the ones she gave the police. There were none missing. She picked up S.E. at 2:18 p.m.
[30] At 3:05 p.m. she was texting Todd from her bathroom where S.E. is throwing up into the toilet. She texted: "Todd can you please let me know what happened between you she doesn't remember and really wants to know did you guys have sex." K.R. testified that S.E. could not remember what happened, but she said that she hurt down there.
[31] Todd responded "No sex! No way!" K.R. then texted "Okay. Good she cant remember anything and just wanted to make sure."
[32] K.R. agreed that she sent Todd many texts about S.E.'s keys.
[33] In cross-examination, K.R. agreed that by the end of the night it was obvious that S.E. was intoxicated.
[34] Todd Blanchard testified in his defence. He testified that he invited K.R. that day at work to come to the party. He had lived in this house for about a year. He rented a room, as did three other guys. There were common areas everyone could use. He had his own bedroom. Tyler owned the house and was his landlord. Mr. Blanchard had a girlfriend, Molly Jenson, who moved into his room with him about two months after he moved there. She was shopping with her sister that night and decided to go to her mother's house to sleep before leaving the next day for England on vacation.
[35] Mr. Blanchard works at T-Booth in the Upper Canada Mall. A friend, Kirill had texted him during the day and wanted to get together for drinks. Mr. Blanchard asked Tyler if it was okay if he had a few friends over and Tyler said it was a good idea as his brother and his brother's girlfriend were visiting. He saw K.R. at end of the day around 5:30 and asked if she wanted to come to a party.
[36] Mr. Blanchard saw K.R. and another girl arrive in a red Dodge Charger after 9 p.m. He saw the other girl get an LCBO bag from the trunk and they came up the driveway. K.R. introduced S.E. and Todd introduced them to his friends who were at the party already. Mr. Blanchard testified that his girlfriend was supposed to come for dinner but decided after shopping with her sister to go to stay at her mother's before leaving on her vacation.
[37] On one occasion Mr. Blanchard was outside smoking a cigarette with his roommate Jason and Kirill. S.E. came outside; she was mumbling her words a bit and staggering. She gave Jason a hug. S.E. then went to Kirill and hugged him. She then grabbed Mr. Blanchard around his waist. Mr. Blanchard then went inside the house.
[38] Around 11:00 or 11:30 or 12:00 Mr. Blanchard decided to go to bed as he was tired. He had about 10 drinks up to the point in the evening but was not staggering or slurring his words. He went to sleep in his room. S.E. was still sitting on the brown chair to the right of the couch. In the early morning he received some texts from K.R. asking about calling in the morning.
[39] He got up around 8 or 9 a.m. The kitchen was messy as was the living room. S.E. was asleep on the couch under a blanket. Kirill was sleeping on the floor beside the couch. Mr. Blanchard testified that he wanted to clean things up so he shook S.E.'s arm. She mumbled something but did not wake up. He could not understand what she had said.
[40] At some point he tried to wake her up again. He wanted her to go home. She was still incoherent so he did not think it would be a good idea for her to drive home. He told her to go upstairs to his bedroom to sleep. He did not go with her.
[41] Mr. Blanchard had been texting K.R. and he also spoke to her by phone. K.R. said she would come and get S.E. at some point. Tyler's brother and his girlfriend were in the basement. At some point his roommate Kevin came home from work. He was upset by the mess.
[42] Mr. Blanchard went upstairs to check on S.E. She was lying face down on his bed fully clothed. At some point Mr. Blanchard went to the store for cigarettes and gator-aid. At some point after returning to the house he went upstairs and gave S.E. some water and pre-packaged Advil. He gave her his cell phone and asked her to call somebody. She said she would. S.E. mumbled something to him about boys, blow job and car. She rolled over onto her back and Mr. Blanchard saw she had vomit on her clothes, which she had also gotten onto his bed. He grabbed an old pair of jeans and a shirt from the laundry and threw it to her and said she could change.
[43] After 2 p.m. K.R. and another woman came to pick up S.E.. He ran upstairs and told S.E. her friends had arrived. They left his house. She was wearing his white shirt but he did not know if she had put on his jeans.
[44] He received a text from K.R. asking if he had sex with S.E. because she could not remember. He texted back "No way!" There were numerous texts about S.E.'s car keys. He had not seen them when he was cleaning up. He looked in the brown chair. He could not find them.
[45] Mr. Blanchard testified that on a number of occasions he was joking with K.R. in the texts that he was exchanging with her. At one point, he texted that she was naked in his bed but he was joking as she was never naked in his bed. He did not believe K.R. was serious in her response, "What??? Please don't rape her." He responded, "Oh no way! Maybe the other way around."
[46] When K.R. asked him "Did she fuk you?" Mr. Blanchard did not believe she was serious and took it as joking which he played along with when he responded, "Nunya business!"
[47] Mr. Blanchard testified that he did not think K.R. was being serious until 3:05 p.m. when she texted "Todd can you please let me know what happened between you she dosn't remember and really wants to know did you guys have sex."
[48] At some point K.R. phoned Mr. Blanchard and mentioned something about rape. This scared him. K.R. told him that another person, someone other than S.E. or her wanted him to be charged with rape. K.R.'s text at 6:27 p.m. was after this phone conversation. "If your lowyer calls I have nothing to say I was not there for the aftermath so I can't say anything. They are not charging you and I never Accused you of rape so its not my call".
The Law
[49] As in any criminal case, Mr. Blanchard is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
[50] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.
[51] While to lawyers this may all sound familiar, it is important that the parties understand that this is not a civil case where the result may be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of the two essential witnesses appears more credible. As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted recently:
W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.
[52] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:
However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[53] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the absence of evidence, the charge must be dismissed: Lifchus.
Analysis
[54] In applying these principles to the case at bar I must assess the evidence of Mr. Blanchard in light of the totality of the evidence, including the evidence of the complainant. As I indicated previously this is basically a he said/she said domestic case.
[55] I listened carefully to the evidence of Mr. Blanchard. He was cross-examined very closely by Ms. Armour and in my view; he gave his evidence in a straightforward manner. He was not caught out in any lies. As Mr. Mideo has argued, much of his evidence is supported by the evidence of K.R. and the text messages that were filed as Exhibit 3.
[56] I do not agree with the Crown as to the inferences she has asked me to draw concerning the texts and their meaning. Ms. Armour did not ask K.R. a single question about the text conversations she was having with Mr. Blanchard throughout March 11, 2010. What the Crown is asking me to do is speculate about what was going on in K.R.'s mind concerning the texts. On a plain reading of the exchanges I was referred to by Ms. Armour I find that those conversations were made in a joking fashion. I further accept the evidence of Mr. Blanchard that if he could do those texts all over again he would not have been so cavalier and he would not have joked back and forth with K.R.
[57] S.E. testified that when she first woke up in the bedroom it was dark out, it was night time; the moon was coming in through the window. Yet it is the Crown's position that the sexual assault occurred after 8:51 during the daytime, based on her submissions as to how I should read the text messages. This, in my view, is a significant discrepancy in the evidence.
[58] I find that S.E. consumed a considerable quantity of alcohol, which caused her to pass out around 12 midnight or later, based on K.R.'s evidence. She was sick to her stomach at some point while she was passed out on the brown chair and someone had provided her with a bucket, which had vomit in it the next morning. She initially was on a chair and was later moved onto the couch where Tyler covered her with a blanket prior to going to bed himself. S.E. was still sick to her stomach around 3 p.m. after returning to K.R.'s house, where she was vomiting into the toilet while K.R. was texting Mr. Blanchard.
[59] I find that S.E. did not know what had happened to her at the house, from the time she passed out until she was picked up by K.R. S.E. herself testified in her evidence in chief that she kept telling her friend's that something happened and she did not know if they could find out or not but she needed to know because something happened. K.R. told S.E. she would try to find out. S.E. testified that she kept thinking that something had happened. Further, in cross-examination she agreed that she asked K.R. to find out what happened. She testified that she did not use the words "did I have sex with Todd?" but she asked K.R. to find out whether she was taken advantage of. She does not recall if Todd replied to K.R.'s texts. K.R. told her that she had nothing to worry about, everything was fine.
[60] This is also supported by the evidence that S.E. gave Mr. Blanchard a big close hug when she left the house at 2:20 p.m. Further, in K.R.'s texts she indicates at 3:26 that S.E. says thanks to everyone who looked after her. This action and comment toward Mr. Blanchard is not consistent with someone who knows that she has been sexually assaulted by this person.
[61] What is most telling however, is the text messages sent by K.R. to Mr. Blanchard between 3:05 and 3:10: "Todd can you please let me know what happened between you she dosn't remember and really wants to know did you guys have sex." Blanchard's response at 3:08: "No sex! No way!" K.R.'s text at 3:10: "Okay. Good she cant remember anything and just wanted to be sure." It was K.R.'s evidence, which I accept that "S.E. could not remember what happened but she said that she hurt down there."
[62] I accept the evidence of Mr. Blanchard that just prior to 6:27 p.m. he received a phone call from K.R. where she told him that the other person who picked up S.E. at 2:18 wanted to have Mr. Blanchard charged with rape. That this wasn't S.E. or K.R.'s position but this other person was telling S.E. to lay charges. Mr. Blanchard's text conversation which follows K.R.'s 6:27 text only makes sense in light of the phone conversation he says he had with K.R.
[63] I am also mindful of Justice Sharpe's comments in R. v. Edgar, para. 67. Mr. Blanchard was confronted by K.R. long before any charge was laid, and he emphatically denied having sex with S.E. I am unable to say that I reject Mr. Blanchard's evidence. I accept his denial made to K.R. as well as his denial in court.
[64] It would be dangerous to convict on the evidence that has been led in this trial. The Crown has fallen far short of the burden of proof beyond a reasonable doubt and consequently, I dismiss the charge of sexual assault facing Mr. Blanchard.
Released: April 17, 2013
Signed: Justice Peter C. West