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order directing that the identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.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.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

S. McDonald, for the Crown

— and —

A.P.

A. Sobcuff, for the accused

Heard: May 27, June 6, July 15, August 2, October 4, 2013

Decision

FELDMAN J.:

The Charge

[1] A.P. entered a not guilty plea to a charge of Sexual Assault. It is alleged that he performed oral sex on the complainant, J.W., without her consent while she was sleeping beside him in his residence. She says she put a stop to it when she awoke after which she got up and immediately left his apartment.

[2] The defendant told the court that he believed the complainant was awake and that he had her consent. In the alternative, he says he was honestly mistaken about having permission to be intimate with her. On the material issues of fact, the narratives are quite different.

[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the prosecution.

The Evidence

[4] J.W. testified that in the spring of 2011 she met the accused through mutual friends at a tavern, Shoeless Joe's, where they all often gathered for drinks. She told the court that during the summer she and A.P. became good friends and developed a bit of a relationship that she reluctantly conceded in cross-examination involved some intimacy.

[5] J.W. was less forthcoming in her earlier statement to the police given on March 21, 2012. When asked if she dated the defendant for a bit in the summer, she replied that they went out a few times but did not date. She was then asked if they were sexually intimate. She responded that they were never intimate, did a few things, but never had sex. Understandably uncomfortable with the questions, the complainant's answers permit the inference she was attempting to avoid revealing intimacies in the relationship in order to play down the nature of it.

[6] J.W. told the court that she and the accused remained good friends but went on to date others in the fall. During that latter period she indicated that they saw each other 3-5 times a week, sometimes alone, other times with mutual friends. She insists their relationship was at this point platonic.

[7] J.W. recalls spending time with the defendant over Christmas at Shoeless Joe's, possibly on occasion at his basement apartment. She was invited by the accused to a New Year's Eve party at the home of his landlord, J.W., whom she knew. She was prepared to sleep over at the defendant's apartment, as she had done in the past, in the event she drank too much. Attending another party earlier, the complainant arrived around 11:30 p.m. She said she brought 3 beers.

[8] The gathering was on the main floor of the house. Present were J.W., his son and girlfriend, together with the defendant and his children, both of whom were to sleep upstairs. Alcohol was consumed, although it seemed to the complainant that no one was intoxicated. She was unsure if she finished her third beer.

[9] After midnight, following some hugs, they played video games until 1:30 a.m. She had to be up early but felt she ought not to drive. She and the accused went downstairs. She changed into pajama bottoms and a tee-shirt. She said she was wearing a brassiere and panties.

[10] J.W. testified that after changing she lay down on the futon couch intending to sleep there. The defendant lay down beside her in his clothes shortly after that with his front facing her back. A photograph, exhibit 4b, indicates that there was barely room on the couch for two people.

[11] J.W. told the court that she thinks the accused asked if he could lay down with her. She says she told him she was fine with that. They had been friends a long time and had in the past watched movies together during which she sometimes leaned on him. A.P. brought a duvet to cover them. They shared a pillow. She was tired and intended to sleep.

[12] The complainant recalls that their bodies were very close and their upper bodies in contact. She says there was no touching, massaging or discussion of sex. She believes she fell asleep quickly. She told the court she woke up around 3 a.m. in the same position but went back to sleep.

[13] J.W. next awoke at 5:30 a.m., she says, unaware, although ordinarily a light sleeper, that the accused had moved her onto her back, lifted her pelvis and removed her pajama bottoms and panties. She testified that she sensed the defendant's mouth on her vagina although it was too dark to see. She felt some of his fingers inside her. She says her panties and pajama bottoms were below her knees. She told the court she never consented to oral sex and was shocked by what was happening.

[14] J.W. said she sat up, pulled up her underwear and indicated she had to go. She got her belongings and recalled the defendant asking if she was all right. He walked her outside and asked again how she was. She said she was fine but told the court she felt uncomfortable and did not express her objection to the violation of her bodily integrity.

[15] Over the course of the next several days they texted back and forth a few times. The complainant gave evidence that the defendant wanted to know what was wrong and that he suggested meeting to discuss it. She said she told him she would not deal with his questions by text but would get together so long as it was not at his place.

[16] Prior to meeting at Starbucks, she believed, on Jan. 10 for that purpose they saw each other a couple of times at Shoeless Joe's but had no meaningful exchanges. J.W. told the court that the more she thought about what had taken place the more upset she became.

[17] On that date, one she agreed might instead have been later on Jan. 23, she said they sat in the defendant's van because she was too distressed to meet inside Starbucks. She explained to him what he did for which she says he apologized more than once, telling the complainant he thought she was awake and that at the time what he did was fine with her. She called him a liar.

[18] J.W. gave evidence that they saw very little of each after that except for some meetings at the tavern during one of which she yelled at him and told him she wanted nothing more to do with him. She believes this was still in the month of January.

[19] Given her upset over the New Year's events, her doctor suggested she speak to the police. She did so on March 8, but was unsure if she wanted to start a prosecution. At the time she did not identify her assailant, only doing so a couple of weeks later on March 21 because she continued to feel badly about what had been done to her without her consent.

[20] In cross-examination, J.W. initially testified she stopped texting the accused after Jan. 10, later conceding that the texts continued until Jan. 27. On Jan. 1, she sent him a text asking the defendant if he wanted to see a movie with her. She had earlier tweeted that it was "such a great day" over New Years and that they had "partied like a rock star". She also posted on social media a video of the party that included the accused dancing.

[21] On Jan. 22, J.W. sent a text to the defendant asking for a ride home from the bar. He complied. She could not rule out the suggestion that they hugged when he dropped her off at home. On Jan. 27, she texted the accused from the pub, inviting him to come over and share some fries with her. They later texted each other, 'good night'.

[22] The complainant could not explain those messages but speculates that at the time she might just have been trying to brush off what happened. Nonetheless, in relation to her testimony suggesting anger with the defendant over having been violated, there is incongruity in this evidence of civil exchanges and indications of continuing friendship.

[23] It was at this point in the evidence that counsel for the accused brought an application under Code s. 276 to permit the calling of evidence of prior incidents of sexual conduct between the parties. Following the testimony of the defendant on this application, the Crown conceded that the complainant's credibility in relation to her prior sexual history with the defendant could be challenged on her continuing cross-examination given that in her evidence she placed the nature of her relationship with him in issue. As well, the defence conceded that the accused's evidence would apply to the trial proper.

[24] A.P. is 34 years of age. He is divorced and has two young daughters. He has worked for Telus Communications for 12 years. He told the court he met the complainant in the summer of 2011. He says their friendship evolved in August to include a degree of affection and intimacy. He testified that he performed oral sex on her with her consent 3-4 times from August to January.

[25] A.P. says the relationship involved hanging out together at his apartment, as well as at Shoeless Joe's, having dinner at his residence and her sleeping over on his futon up to 2-3 times per week, with him sometimes joining her there. He testified that on one occasion in November, she permitted oral and digital sex and touched his genitals but held back from intercourse until he was tested for sexually transmitted diseases. In December, he claims she slept over during which he indulged twice in oral sex. On both occasions, he says the complainant left early in the morning.

[26] The defendant told the court that on New Year's Eve, he did not expect J.W. to sleep over because he had his children staying with him. He recalls her sending a text asking to come over from a different party she had attended earlier in the evening. He says that after they spent the evening upstairs the complainant went down to his apartment around 2 a.m. He followed shortly afterwards. He says he had consumed 7-8 beers.

[27] They both changed into night clothing. He says J.W. lay down on the futon, asking him to lay with her for a while. He was worried about his children, sleeping upstairs in a loft, finding him there in the morning, given his recent divorce, and indicated he expressed that concern to the complainant.

[28] A.P. testified that he lay down on the couch behind her in a "spooning" position with his front touching her back and his legs tucked in against hers and with one arm under her pillow and one around her waist. Given the size of the futon, this evidence is plausible.

[29] A.P. says that around 3:30–4:00 a.m., as he began to doze off, he decided to get up to go to his bed but claims the complainant asked him to stay longer. He said he complied a second time closer to 5 a.m. shortly after which he claims J.W. began to grind her behind into his genital region, initiating sexual contact. It was dark and he could not tell if her eyes were open.

[30] A.P. says he touched the complainant's stomach and that in response she began to breathe heavily and roll onto her back. He testified that he rubbed her genital area and then put his hand under her clothing to touch her vagina. He says that as he got up and started to take down her pajama bottoms, the complainant, who he believes was then awake, lifted up her pelvis to help him and said nothing as he pulled off her panties. He then began oral and digital sex that he says he could tell she enjoyed despite the lack of communication because of the sounds she made.

[31] The defendant told the court that after a brief time, perhaps 5-10 minutes, J.W. hesitated, expressing concern his children might come down but that he tried to assuage her. Given that it was then only 5-6 a.m., this is questionable and likely self-serving evidence. A.P. said the complainant decided to leave, abruptly he claims, as she has done in the past.

[32] As she testified, A.P. walked her outside. He says he expressed concern about her ability to drive given her alcohol consumption that he said included 3-4 of his own beers, in addition to her own, plus a glass of wine. If true, this would also tend to support the complainant's evidence that she slept through the violation of her body. A.P. said he expressed concern about her driving home, hugged her and asked her to text him that she arrived safely. She did so.

[33] J.W. provides some support for the defendant's testimony about prior intimate contact between the parties. He gave evidence that he recalls the complainant being over at least 6 times in the summer and fall of 2011, usually staying overnight.

[34] On one occasion, he believes in November, J.W. claims to have heard moans of pleasure coming from the basement apartment, through a vent in his bathroom, in a voice he recognized as that of the complainant. He explained that as a recording engineer he listens to voices for a living. While he was not seriously challenged in cross-examination, as a friend of the accused, he could not be considered an independent witness. Nonetheless, this evidence, however weak, tends to support that of the defendant that he and the complainant were intimate in November. I cannot conclude that I reject it out of hand and in the result accord it some weight.

Issues of Credibility

[35] In relation to the material facts in issue, the parties' narratives are diametrically opposed. I found J.W. to be a generally credible witness whose expression of upset over what befell her to be sincere. I preferred her evidence to that of the accused.

[36] There are some aspects of her testimony, however, that tend to weaken its objective reliability. Until pressed in cross-examination following the s. 276 hearing, the complainant, perhaps understandably, but unacceptably, minimized the intimate nature of her contact with A.P. permitting the inference in my view that she was attempting to shape the perception of the nature of her relationship with the defendant. Given its questionable probative value, I would not otherwise weigh evidence of their prior history of intimacies in drawing additional inferences or assessing credibility.

[37] In addition, as noted earlier, some of the content of the complainant's texts and tweets with the defendant for almost a month following the events and the civil nature of her contact with him during that period permit inferences inconsistent with the nature and building degree of upset she described. This is significant evidence that in my view diminishes the coherence of J.W.'s narrative.

[38] In fact, Crown counsel acknowledges ambiguity in the relationship that after the alleged events included postings on social media and texts that did not portray distress. But she submits that, despite this, the evidence points to the complainant being neither awake nor having the capacity to consent to oral sex on Jan. 1, an assertion that on this evidence is somewhat questionable. Further, in that regard, she describes the adjustment of the complainant's body position to accommodate intimacies as being subtle, an elusive word that, she says, nonetheless lends some support to the inference that J.W. was unknowingly undressed while in a deep sleep probably enhanced by alcohol. However, that is not the only inference available on a weighing of all the evidence that includes consideration of the close sleeping arrangements, the significance of J.W.'s testimony and the reliability concerns.

[39] The defendant was dismissive of the allegations in asserting a narrative that had the complainant taking some initiative in arousing him and openly participating in consensual sexual acts. However self-serving and improbable in light of the complainant's genuine upset with him, I am nonetheless mindful that in the weighing process the defendant's unimpressive testimony was not unravelled in cross-examination on the issue of consent to the degree that it was undermined, in addition to its having the corroborative support of his landlord's evidence in the context of the reliability concerns noted earlier.

The Reasonable Doubt Standard

[40] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption of innocence. This standard has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

[41] Of importance, reasonable doubt is to be applied where credibility is at issue. In this regard, I am mindful to follow the three-step analysis set down by Cory J. in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).

Conclusion

[42] I consider it probable that the accused performed oral sex on the complainant without her consent or that he was at least reckless about it. However, on all the evidence, for the reasons expressed, I am uncertain about the circumstances surrounding the acts of intimacy in the early morning hours of Jan. 1, including the level of awareness of the parties and the question of consent in relation to which I am left in reasonable doubt. The charge will be dismissed.

Released: June 13, 2014

Signed: "Justice L. Feldman"