WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.: 12-001840

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jesse Sawyer

Before: Justice Robert S. Gee

Heard on: January 13th, 14th & 15th, 2014

Counsel:

R. Kindon for the Crown

R. Fawcett for Jesse Sawyer

Reasons for Judgment

[1] Charge and Background

Mr. Sawyer is charged with sexually assaulting R.W. The events that gave rise to the charge occurred on July 29, 2012 at a buck and doe on the Six Nations Reserve. The buck and doe was held at Hank's Place, which is apparently a venue specifically utilized for large outdoor gatherings such as this.

[2] The Event

The buck and doe was being held for the benefit of the complainant's cousin, and was from all accounts very well attended. One witness estimated over the course of the night somewhere between 600 and 1000 people had attended. As one may assume with an event of this nature and size, alcohol was consumed by many of the patrons, in large quantities. The accused and the complainant in this matter were no exception.

[3] Intoxication of the Parties

In fact, the quantity of alcohol consumed by the accused and the complainant figured prominently at trial. The evidence disclosed they were both under the influence of alcohol at the time, with the complainant being the more heavily intoxicated of the two. The complainant consumed such large quantities of alcohol that it has significantly compromised her memory of the night. She testified that she either has no memory of some portions of the night or "blacked out" at times. A report of a toxicologist was filed on consent. The toxicologist determined, from a urine sample, taken at 5:00 a.m., that at that time the complainant had 297 mg of alcohol in 100 ml of blood. The implication from this is that when the events in question occurred, approximately three hours earlier, her blood alcohol concentration would have been even higher. In addition, all the witnesses who had an opportunity to observe the complainant confirmed how heavily intoxicated she was.

[4] The Sexual Encounter

That a sexual encounter took place between the accused and the complainant just as the buck and doe was ending is not disputed. Not only was the encounter observed by several persons, DNA from the accused's saliva was also located on the underwear worn by the complainant. It is the contention of the defence that this encounter between the two was consensual or if not, that the accused believed the complainant to have consented.

[5] Crown's Theories

The Crown has advanced two seemingly incongruous theories that provide a pathway to the accused's guilt. The first theory is that, given the complainant's extreme state of intoxication, she was not capable of consenting to the sexual encounter. The second theory is that if she was not so intoxicated that she was incapable of consenting in the circumstances, then she did not in fact consent.

[6] Capacity to Consent

Dealing with the first theory of the Crown, that the complainant lacked the capacity to consent, I have reviewed the Court of Appeal decision in R. v. Jensen, [1996] O.J. No. 1514 and the Superior Court decision of R. v. S.B., [2013] O.J. No. 5614 for some helpful guidance in this area. After doing so and after reviewing the testimony in this case, I find that the complainant was not so intoxicated that she lacked the capacity necessary to consent to sexual activity.

[7] Reasoning on Capacity

My reasoning underlying this finding is based primarily on the testimony of the complainant. Although her consumption of alcohol has significantly compromised her memory of the night, she testified about a number of the details of the encounter, including the fact she contends that she said "no" to the accused during the encounter. As well, she stated it occurred in the area of the buck and doe where the trucks were parked, which fact was confirmed by other witnesses. She stated the accused was trying to kiss her and she was trying to push him off. She also stated his face and hers were close, close enough that she recalled he had acne and that he was tall and skinny. Moreover, approximately a year after the encounter she saw the accused at the beach in Port Dover and was able to recognize him as her attacker. Other witnesses testified that although she was very intoxicated, she was still walking and continued to talk, and as well at one point may have even been attempting to perform cartwheels, after the alleged sexual encounter.

[8] Conclusion on Capacity

Although she may have been extremely intoxicated, given the details of the incident she claims to recall, and her actions at or about the time, I conclude the complainant possessed the minimal capacity necessary to consent to sexual activity.

[9] Focus Shifts to Actual Consent

As a result of this finding, the focus shifts to the second theory of the Crown that the complainant did not in fact consent to the sexual activity. A lack of consent is an element of the offence the Crown has to prove beyond a reasonable doubt. Since the complainant is asserting a lack of consent and the accused is asserting the opposite, the credibility and reliability of the testimony of the complainant and accused is critical to a determination if the Crown has met its burden.

[10] The W.D. Framework

In approaching this task, I am guided by the well-known three part framework set out by the Supreme Court in R. v. W.D., [1991] 63 C.C.C. (3d) 397. The first part of that framework is that if I believe the accused I must acquit. The second part is that even if I do not believe the accused, if I am left in a state of reasonable doubt by his evidence I again must acquit. The final part is that even if I do not believe the accused and am not left in a state of doubt by his evidence I must ask myself based on the evidence I do accept, has the Crown proven the case beyond a reasonable doubt.

[11] Complainant's Evidence — Recollections

Dealing first with the evidence of the complainant. As noted earlier, she was very intoxicated and this has significantly compromised her memory of that night. She did state she recalled various parts of the night, such as what she was doing prior to arriving at the buck and doe, who she came with, some of the people she saw and spoke with when first arriving, and some of the things she did while there, like dancing with friends. As for her dealings with the accused, as noted, she recalls an encounter with him where they were behind a truck and he was pressing up against her and saying "let's do this" and her telling him "no." She also recalled how he looked that night in sufficient enough detail to recognize him approximately a year later.

[12] Sober Witnesses — Jaycie Homer and Edward Thomas

However she has no recollection of any other interaction between her and the accused. A number of other witnesses who were at the buck and doe and were sober also testified. Among them were Jaycie Homer and Edward Thomas. Jaycie Homer was working selling drinks that night. Edward Thomas was also working there that night. He would get the alcohol and deliver it to where it was sold, walk around and make sure people were not getting out of control and he also served alcohol for a time. As such, both Ms. Homer and Mr. Thomas were particularly well situated to observe both the amount of alcohol consumed and the actions of both the complainant and the accused.

[13] Observations of Prior Conduct

They both confirmed the intoxicated state of the complainant. They testified she was intoxicated to the point where they stopped serving her alcohol. What they also observed though was that the complainant spent several hours that evening in the company of the accused. According to Ms. Homer and Mr. Thomas, the interaction between the complainant and the accused was more than simple social interaction one might expect at such an event. What they observed was the complainant and the accused were, as they described "making out hardcore" throughout the night. This behaviour was being engaged in to an extent that it was perceived as socially unacceptable and they were admonished a number of times for it by Mr. Thomas and others.

[14] The Critical Moment — Behind the Truck

Mr. Thomas was the person who observed and interrupted the encounter between the accused and the complainant behind the truck. Mr. Thomas was told by a co-worker that the accused and the complainant were behind the truck engaging in the same behaviour they were admonished for earlier. When he went around the truck he observed the accused and the complainant on the ground. The accused was on top of the complainant and her legs were around him. He yelled at them and the accused immediately stood up looking startled. The complainant began backing up screaming somewhat incoherently but also that the accused was trying to hurt and rape her. She also was asking for her uncle Calvin, who Mr. Thomas knew, and whom he also knew was not at the buck and doe that night. He told Ms. Homer to stay with the complainant and the accused while he went to look for the complainant's family members. While he was gone two things happened; the accused left and at some point the complainant made an accusation that Mr. Thomas was the one who had assaulted her.

[15] Assessment of Complainant's Credibility

It is in this context that I must review the evidence of the complainant. When she testified in court I found her to have testified in an honest and straightforward manner. She tried to answer questions to the best of her ability. She answered questions that were embarrassing and unflattering to her. At times she was emotional and crying. She came across as a person who, to the best of her ability, was trying to be honest and truthful. I find that when she testified, she was relating to the court a recollection of the events she is convinced is true. However I must be wary of conflating the honesty with which she holds her conviction with the reliability of it.

[16] Assessment of Accused's Evidence

Before turning to that aspect of her testimony I should pause to comment on the testimony of the accused. His evidence suffers from some of the same issues of that of the complainant. He claims to have an accurate memory of the events of that night but there were parts which he claims not to recall, such as how he and the complainant ended up on the ground behind the truck. He claimed that all aspects between he and the complainant that night were consensual. He recalled the earlier parts of the evening where he and the complainant were engaging in displays of mutual affection. The next morning he had hickeys on his neck that were observed by his friend and his mother, though he had no recollection of when in the night he got them.

[17] Accused's Alcohol Consumption

He consumed a significant quantity of alcohol that night too, though not as much, it seems, as the complainant. Early in the night when he was speaking with his mother she stated at that time, though not intoxicated he would have been too impaired to drive. After this point, he continued to consume alcohol for the rest of the evening.

[18] Credibility of Accused

Given this I find that his recollection of the events that night has also been compromised by the haze that comes with the consumption of large quantities of alcohol. As such in relating this to the first part of the W.D. framework, I find I am not in a position to believe him.

[19] Reliability of Complainant's Evidence

Returning to the evidence of the complainant, I find I cannot, notwithstanding the honesty of her beliefs, accept it as reliable. Too many parts of that night are simply not recalled by her and those parts that are, combined with what is known of her behaviour and actions that night, lead me to conclude her memories have been too compromised by alcohol to make them reliable.

[20] Conclusion on Complainant's Testimony Alone

As such, I find I cannot conclude, based on her testimony alone that she did not consent to the sexual activity. If I am to conclude that she did not consent, it will have to be based on other evidence which I do accept.

[21] Analysis of Edward Thomas's Evidence

Edward Thomas was the only other witness who observed the accused and the complainant at the critical moment that would best assist me in determining whether I am satisfied the complainant did not consent. His evidence was that when he called out for the accused and the complainant to stop their activities, she immediately reacted in a manner consistent with a lack of consent. However, he also testified that when he first walked around the truck and observed the accused and the complainant on the ground before yelling at them, what they were doing at that time, to him, appeared to be consensual. I also note that he never testified to hearing the complainant say "no" as she had testified. I am also mindful of the prior activities between the accused and the complainant, over the course of the night, that were undoubtedly consensual. As well, even though I cannot accept the accused's evidence wholeheartedly, he has asserted the complainant consented to the activity which is, like previously mentioned, consistent with her behaviour for the better part of the night. Other explanations proffered for the complainant's reaction when confronted by Mr. Thomas behind the truck, were that she had just broken up with her boyfriend earlier that day; a boyfriend I would note with whom she is now back together, or, that was her reaction to being caught engaging is this type of behaviour in public.

[22] Final Determination and Verdict

In reviewing the evidence in its entirety and in context of the behaviour of accused and complainant throughout the night, I find that the evidence relating to consent is equivocal and I am unable to resolve the issue of consent or lack thereof to the degree necessary in a criminal trial. As such, focusing on the third branch of the W.D. framework, I find that the Crown has failed to prove beyond a reasonable doubt that the complainant did not consent to the activity in question. As a result of this finding, the charge against the accused will be dismissed.

Dated at Brantford, Ontario

This 14th day of April, 2014

The Honourable Mr. Justice R.S. Gee