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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

ONTARIO COURT OF JUSTICE

Date: October 3, 2014

Court File No.: Goderich 1411 998 13 527 00

Between:

HER MAJESTY THE QUEEN

— and —

M.V.

Before: Justice Brophy

Heard on: 24 and 31 March, 24 and 28 April, 20 and 27 June, 11 July, 22 August and 5 September 2014

Reasons for Judgment released on: 3 October 2014

Counsel:

Teresa Donnelly — counsel for the Crown

David A. Reid — counsel for the defendant M.V.

BROPHY J.:

INTRODUCTION

[1] M.V. has been charged with three counts of sexual assault.

[2] It is alleged that on or about 19 July 2013 at the town of G.B. he committed a sexual assault on T.D.. Further he is charged that on or about 20 July 2013 in the municipality of S.H. he committed a further sexual assault on that same person. The final charge is that on that same day 20 July 2013 he committed another sexual assault on Ms. D.. All of these offences are contrary to section 271 of the Criminal Code. The Crown proceeded summarily.

[3] The theory of Crown's case is that while the accused was at the Gables drinking establishment in G.B. on 19 July 2013 he reached around T.D. from behind and grabbed her breasts. Later on 20 July 2013 as she and her boyfriend D.K. and the accused were returning to E. in a cab the accused again groped her. Finally it is the Crown allegation that in the middle of the night the accused came into her bed in D.K.'s home and had sexual intercourse with her without her consent.

[4] The defence with respect to the first allegation is that it did not happen and with respect to the second and third allegations that the sexual activity was consensual.

[5] It should be noted that there was a section 276 application brought after the first day of evidence on 24 March 2014 and argument took place and a ruling was made on 28 April 2014 rejecting the application.

BASIC PRINCIPLES

[6] This is a criminal case. Therefore the Crown must prove the case beyond a reasonable doubt. Every person charged with an offence is presumed to be innocent, unless and until Crown counsel has proven their guilt beyond a reasonable doubt.

[7] From the start to finish, it is Crown counsel who must prove the person charged guilty beyond a reasonable doubt. Mr. V. does not have to prove his innocence.

[8] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[9] If, at the end of the case, after considering all the evidence, I am sure that Mr. V. committed the offence, he should be found guilty of it, since I would have been satisfied that he is guilty of that offence beyond a reasonable doubt.

[10] If, at the end of the case, based on all of the evidence or the lack of evidence, I am not sure that Mr. V. committed the offence, I should find him not guilty of it.

[11] Finally, it is important to consider carefully, and with an open mind, all the evidence presented during the trial.

ISSUES

[12] The issues in this case are essentially an assessment of the evidence, the consideration of the application of the W.(D.) principles and a determination as to whether the Crown has proven the case beyond a reasonable doubt.

FACTS

CROWN EVIDENCE

T.D.

[13] The core of the Crown's case is the evidence of T.D..

[14] Ms. D. was born on […], 1993 and was 21 when she testified. Traditionally she has lived just outside of E. at the family home with her parents and two sisters. When she was growing up she attended school in the E. area and has most recently attended the University of Western Ontario in London in the third year of a four-year program. At Western she studied criminology and sociology. After graduating her intention is to enter law school. She worked at a grocery store in E. for a number of years and then at a retail store at the Masonville Mall in London. Earlier this summer she returned to the grocery store in E.. She also worked, as I understand the facts, in the summer of 2013 at D. Industries in a factory setting.

[15] In July of 2013 Ms. D. had been dating D.K. for approximately one month. She knew him somewhat from high school, and had had some conversations with him, but they had not hung out together. Their relationship did not begin until 2013.

[16] Ms. D. also knew who M.V. was, but she had not been a friend of his in high school and had had no conversations with him at all. He was a year younger than her and they had no classes together. However he was a close friend of D.K., indeed his best friend, and after she started going out with Mr. K. she had met him twice, but still did not know him very well. To illustrate the point she says that he was not her friend on Facebook. At that point she had not spoken to him on the telephone and had not sent or received any text messages with him. She had never been to his house, although she had a rough idea where he lived.

[17] On 19 July 2013 she went with two friends, E.L. and K.O., to a bar called Gables in G.B. to meet up with friends.

[18] Earlier in the evening she had driven to K.O.'s residence and met up with the other two women. K.O. needed to drive in to London to run an errand and Ms. D. left her vehicle at K.O.'s residence. While driving to London Ms. D. says that she drank about one half a cooler. She had only a half because "it tasted gross".

[19] The women drove into London and then came back to E. and dropped into a residence where S.B. and W.K. and some other friends had gathered and stayed there about 15 minutes. Ms. D. and E.L. smoked some marijuana with the young men and then they got back into K.O.'s motor vehicle and went back to her place to get changed. Ms. D. says that after smoking the marijuana she was a little high.

[20] Next they went to the Ridge restaurant and bar in E. for short period of time. While there Ms. D. says she had one vodka drink.

[21] It should be noted that the drinking in the car and the marijuana consumption and the visit to the Ridge restaurant and bar was developed through cross-examination. Ms. D. readily acknowledged that she had not described those events in chief but explained that she had simply forgotten them. Upon being asked in cross she quickly added the information.

[22] The three women then went to Gables in G.B.. When they arrived at approximately 10 or 11 PM, she was not sure of the time, she left her purse in K.O.'s motor vehicle taking only her identification and money with her, thinking that was all she would need.

[23] The plan was that she was to meet up with her boyfriend, D.K., at Gables, but he was not there when she arrived. At some point he showed up, along with M.V. and some other friends. She spent time with Mr. K., talking and dancing a little bit. As the evening progressed her evidence is that she had a number of further drinks, consisting of Vodka BarLimes.

[24] The evidence from Ms. D. is that altogether she consumed seven or eight drinks throughout the evening and early morning hours of 19 and 20 July.

[25] At some point, when D.K. was at the bar getting drinks, Ms. D. says M.V. came up behind her and grabbed her chest and pulled her towards him. Someone stepped in and said that this was inappropriate. In cross-examination Ms. D. agreed that when she gave her statement to Detective Constable Heather MacRae she said that it was Kyle C. who had intervened. However she was later told by Officer MacRae that Kyle C. had said he was not involved. She explained that she did not then mention his name in her examination in chief because she understood it was not him. She maintained however that in the moment she thought it was somebody who looked like Kyle C..

[26] Ms. D. says that she did not consent to being grabbed in that manner.

[27] As the evening came to a close she and D.K. decided to leave, and M.V. tagged along. She is not sure when this was but thinks it was probably around 1:30 PM. When they went out she spoke to a couple of bouncers that she knew. She was coherent and felt fine, although she recognized that she should not be driving. One of the bouncers was Justin R. with whom she had had a relationship and she thought D.K. was a little jealous about that.

[28] Outside the bar they talked while they waited for M.V. to get some pizza from a vendor. While waiting she sat on D.K.'s knee. They then saw a taxi and decided to grab it. The plan was to go to D.K.'s house at S[…] in E..

[29] They got into the taxi, with Ms. D. and Mr. K. in the backseat and the accused in the front seat. After a couple of blocks the men said they had to urinate and they asked the taxi driver to pull over. He did and the two men got out and urinated in the street. The taxi driver was upset about that and the fact that they were both drunk. Both men then got back into the taxi, but now Mr. V. had gotten into the backseat as well. She was in the middle with D.K. to her left and M.V. to her right.

[30] A couple of minutes later D.K. fell asleep. At that point the accused started rubbing her leg and she looked at him and he kissed her. She pushed him away and she looked back at D.K. shaking him to wake him up but he did not respond. The accused again rubbed her leg and then grabbed her breast and kissed her and she pushed him away again and said she was not interested.

[31] Mr. V. kept saying that Mr. K. did not have to know what they were doing and that no one would tell him and they could do whatever they wanted, insinuating that they should have sex. Ms. D. said that she was not interested regardless of whether D.K. knew or not. She cannot remember her exact words but the effect of what she was saying was that she did not want to have sex with the accused at all.

[32] She did not consent to him rubbing her leg, kissing her or grabbing her breasts. She did not want him to do any of that. When he was doing these things she was telling him to stop and she was trying to wake up Mr. K. so that he could deal with his drunken friend.

[33] She did not say anything to the taxi driver because she thought this was simply a drunk going home alone and not being happy and seeing an opportunity. She thought she handled it and he in fact stopped touching her after the second attempt. She felt she had dealt with the situation.

[34] When they got to S[…] M.V. had to remove D.K. from the taxi. He was able to stagger into the house with support from Mr. V. and Ms. D. followed them inside. She had been to the house twice before but had never stayed overnight. She understood that D.K.'s room was downstairs in the basement. She had been on the main level and in the basement but had never been in the upstairs of the house. Mr. K. went inside the house and stumbled up the stairs and she asked him where he was going. All he could do was turn around and give her a smile and then he continued stumbling up the stairs. She went downstairs to the bedroom that he shared with his brother S.K.. The accused followed her downstairs. There was no conversation. She did not know why the accused stayed at the house because he lives a short distance away. She went into the bedroom and through to the en suite washroom. There were two beds in the room. D.K.'s bed was on the left-hand side as you entered the room and there was a bed on the right-hand side. In that bed was M.K., another brother of D.K., and S.M., M.K.'s girlfriend. They were asleep.

[35] After she had used the washroom she found that the lock was jammed and she had to jiggle it to open the door. She got out of the washroom and crawled into D.K.'s bed and fell asleep. She was still wearing the clothes she had worn to Gables, being white shorts with a leopard print tank top and underwear and a bra.

[36] She woke up when someone crawled into the bed beside her. She was facing the wall but saw that it was the accused. He kissed her and started touching her and she pushed him away and told him to stop and that she was not interested and to get out. He turned away briefly and she sent a text to E.L..

[37] A copy of the text was entered into evidence. It was received not for the truth of its contents, but for the fact that the text was sent according to the phone of E.L. at 2:42 AM.

[38] The evidence of Ms. D. is that M.V. turned back to her and tried again to touch her and put his hand up her shorts and she said stop. Then he started rubbing her legs and kept his hand up her shorts and she again told him to stop. He then pulled her shorts and underwear down and he started licking her vagina and she pushed his head away and told him no. He then put his arm across her chest and held one of her shoulders down with his elbow and continued to try her get her shorts and underwear off. She told him to get off her and then he climbed on top of her and used his legs to pin her down and to spread her legs. He had managed to pull her shorts and underwear off and she says that she kept telling him no and was begging him to stop and then he put his penis inside her.

[39] She told him no and thinks that is all that should be necessary. The volume was louder than normal, but she did not call out, because she was trying to deal with it herself. She had never met M.K. or S.M. and did not know what would happen if she had called out. Looking back she should have screamed but at the time she froze.

[40] She had tried to push him off her, but he was bigger and stronger than her. Eventually he pulled himself away from her, stood up and gave her little smile and walked out of the room. She did not know if he had ejaculated. She did not know how long it lasted, but it was not a long time.

[41] She tried to text to E.L., but her phone would not work because of SIM card problems. She was able to send one message and got one back and then after that nothing.

[42] She laid there for a few minutes trying to understand what had just happened and then she got up and went into the washroom and cried and pulled her underwear and shorts back up. She came out of the washroom and noticed that his phone was still on the bed and that meant he was still in the house. She went back to bed and kept checking her phone in the hopes that it would work so she could contact someone. It did not work and she just laid there and eventually fell asleep.

[43] When she woke up in the morning her phone was back working again so she texted E.L. and asked her to come and get her. But E.L. did not come right away and Ms. D. did not know where the accused was. She did not want to meet up with him again, so she stayed in the room.

[44] She also did not know where D.K. was. She texted him a couple of times but had no response. Ms. D. stayed in the house for a couple of hours waiting for E.L..

[45] Eventually she got up and left the room and walked upstairs. She met D.K. coming downstairs. He looked at her in a surprised manner and said that he did not know she was there. He offered to drive her to her motor vehicle and so they left. At that point she did not say anything to Mr. K. about what had happened. They were supposed to go to a wedding that day and he asked her a couple of questions but she did not know what to tell him.

[46] He dropped her off at her car at K.O.s house, but then she realized that she had left her purse in K.O.'s car and did not have any keys and her phone was dead again, so she walked to E.L.'s house. She met up with E.L.'s mother and found a charger and plugged her phone in and then had a shower because she felt disgusting.

[47] She texted E.L. who then came and picked her up and took her to a restaurant. At that point she texted D.K. and told him there was something she needed to talk to him about. He texted back and said M.V. had already told him. She became angry because she was sure that the accused did not tell Mr. K. what had actually happened. She texted Mr. K. back and told him that it was not funny and he then came over to see her.

[48] She told him what had happened and he became very upset and he left. In a short while she got a call showing D.K.'s call display. When she answered it was M.V. saying he was sorry and he had been drunk. He repeated this several times and she ended up hanging up on him. His tone of voice was scared and upset.

[49] At approximately 1 PM her sister S.D. spoke to her and could tell that she was upset. She came to see her and after talking about it they decided to go to the police station. They got there at approximately 2 PM and spoke to Constable L. Wilhelm who called Detective Constable Heather MacRae. As she had to come from Goderich, Ms. D. was told that she could go home and change. When she did she spoke to her father and told him what happened and they all went back to the police station. Ms. D. met with Officer MacRae and gave a videotaped statement.

[50] Next she went to St. Joseph's Hospital in London with her father for a sexual assault examination. However they did not get there until around 8 or 9 PM and they were not able to help her but said that she could go to University Hospital, although the wait was going to be five hours. Apparently she needed a doctor's referral in any event so they went back to E. to the S.H. Hospital where a doctor wrote the necessary letter. They were told that because she had already showered and changed clothes there was no rush. She was told to go home and go back to St. Joseph's Hospital in the morning, so that is what she did.

[51] On 21 July 2014 she met with Kamala Murphy, a Sexual Assault Nurse Examiner who worked at the St. Joseph's Hospital Regional Sexual Assault Domestic Violence Treatment Centre. A physical examination took place, including a torch light exam, and vaginal swabs were taken as well. There were several tender areas discovered, including her right shoulder, under her left breast and on her left thigh. Several days later these tender areas turned into bruises.

[52] Ms. D. believes that the tender area on her right shoulder was caused by her being pinned down with an arm across her chest. She is not sure why she was tender under her left breast but she thinks the tenderness on her left thigh was from his knee holding down her leg.

[53] On 19 and 20 July 2013 Ms. D. was 5'4" tall and weighed about 120 pounds. She believes that the accused was approximately 6 feet tall and weighed around 200 pounds.

[54] Ms. D. was cross-examined in a rigorous, skillful and thorough manner. The cross-examination took approximately 1½ days. The cross-examination was wide-ranging and addressed many issues.

[55] Some of what was dealt with included the drinking and marijuana use that was not mentioned in chief and the change in her evidence from the statement with respect to Kyle C. and the incident in the bar. In addition there were numerous questions asked about why she did not speak up or call out when she was being assaulted. This would apply to the taxi ride and also to the events in the bed. Lastly, the cross-examination spent an inordinate amount of time dissecting the various movements of the bodies in the bedroom and on the bed and trying to establish contradictions between Ms. D.'s statement and her testimony in chief.

[56] Ms. D. explained why she did not speak about the marijuana and drinking before Gables. She also explained why she did not mention Kyle C.'s name in her evidence in chief. She also offered explanations for why she did not speak up in the taxi: she thought she handled it; and why she did not cry out from the bed: she froze.

[57] As for the cross-examination as it related to the movements of the bodies in the bedroom and on the bed, Ms. D. responded forcefully to those questions, maintaining that her evidence and her statement were consistent. She also explained that she was reporting faithfully as to what had occurred as best she could and in any event she had consistently said no and did not consent.

[58] Ms. D. said that when she gave her statement to the police she answered the questions that were asked. She was not the expert in what was relevant. Moreover she was still in shock at what had happened.

[59] As an example of the way in which the interview took place, Officer MacRae took copies of what were thought to be the relevant text messages. Now that other text messages are thought to be of assistance they are no longer available. Ms. D. says that she cannot control that development. She did what she was asked to do.

[60] There was one fact developed in cross that is noteworthy – that is that Ms. D. remembers that when Mr. V. left the room he took his boxers with him. This relates to a search conducted by the police that found a pair of black boxer shorts in the bedroom. Interestingly, the evidence of the search was not put to Ms. D. and arguably that becomes a Brown v Dunn problem, although the Crown did not make that argument.

[61] Also in cross-examination she rejected the submission that she was trying to save face with D.K. and that was why she was making the sexual assault allegation. Ms. D. said that the easiest thing would be to stick with what the accused suggested - he tried, but nothing happened. But that is not the truth. She was not concerned about D.K.'s feelings or her status with him, she was concerned about what had happened to her.

[62] Ms. D. was not shaken in cross-examination. She was defiant, emotional and firm.

Kamala Murphy

[63] The Crown called Kamala Murphy, the aforesaid Sexual Assault Nurse Examiner. Ms. Murphy testified as to her qualifications and training, which included 25 years as a registered nurse in intensive care units and seven years as an examiner at the London Regional Sexual Assault Domestic Violence Treatment Centre. She became certified in that function seven years ago after extensive training. On average she does 20 examinations per year and the program does about 365. The program deals with crisis intervention, medical treatment and testing, and forensic evidence collection. Her qualifications were not challenged by the defence. The procedure followed was not disputed.

[64] In this case she met with T.D. on 21 July 2013 and completed the sexual assault kit. The process takes about four hours with no one else in the room and no breaks taken. There is a hygienic kit involved and significant efforts are made to maintain control and avoid contamination throughout the process.

[65] A vaginal exam and physical body exam were conducted. Swabs were taken of the vaginal area internally and externally. Two swabs were preserved in a vault and two swabs were placed in separate sealed boxes and labeled. These ultimately were released to the investigating officer.

[66] In addition, there was a physical exam in which the entire body was palpated looking for any areas of tenderness or injury. The examination consisted of a naked eye search and then a torchlight search. The torchlight search allows some determination of the presence of bruising under the skin before it shows. It is done in the dark with special goggles. The torchlight shows purple with a bruise under the skin. The area of tenderness is determined by palpation and measured with a ruler. There is a physical examination form that is completed showing the results. A copy of that form is received in evidence. After the examination the kit is sealed and handed to the investigating officer, who in this instance was Officer MacRae.

[67] In cross-examination Ms. Murphy indicated that tenderness is determined by the client; that is if they say it hurts - it is tender. The process is to first do the naked eye exam, then to do the torchlight exam and then examine by touching or palpation. The client is not told about the result of the torchlight exam before the palpation takes place.

[68] In this case the physical exam revealed the following:

(a) an 8 cm x 7 cm tender area showing purple under the torchlight on the right shoulder,

(b) a 12 cm x 11 cm area of tenderness showing purple under the torchlight on the inside of the inner thigh,

(c) a 5 cm x 3 cm area of tenderness showing purple under the torchlight under the left breast,

(d) there was a 5 cm x 7 cm area of tenderness on the abdomen but it did not show purple under the torchlight, and

(e) a 1.5 cm x 1 cm red area tender to the touch on the back of the head on the left side.

[69] The evidence of Ms. Murphy is that the physical examination was not able to be conducted in the vaginal area because of pain associated with the posterior fourchette and therefore it could not be visualized.

D.K.

[70] The next witness called by the crown was D.K. He was the boyfriend of T.D..

[71] Mr. K. confirmed that he and M.V. were best friends all through school and stayed close up until these events. Since then he has not spoken to Mr. V..

[72] Mr. K. is 20 years old and works for JMR Electric. He is in an apprenticeship program and started right out of high school. He is two years into a five year program with 9000 hours of work involved. He works out of town and for the purposes of the trial attended from Sault Ste. Marie. He has two brothers who also work for that firm, M.K. is a sheet-metal worker and S.K. is an electrician.

[73] He and T.D. became boyfriend and girlfriend in approximately the month of June 2013. He describes going to the Gables bar in G.B. on 19 July 2013 along with M.V.. The two of them, along with some other friends, had been at J. McC's house that evening and had something to drink there and then they went on to Gables. He met T.D. at Gables and they talked about her going back to his house at the end of the evening. He had a considerable amount to drink and he had worked all day and he remembers getting in the taxi and he thinks he remembers getting out to urinate. He remembers that M.V. was originally in the front seat and he and T.D. were in the backseat. After that he cannot remember much of what happened that night. He has some memory of walking upstairs and passing out. His next clear memory is waking up in the morning. He was upstairs in M.K.'s bedroom and he is not sure when he woke up, but he remembers walking downstairs and meeting T.D. at the entrance of the house. She asked him for a ride to her motor vehicle.

[74] When he got back to his house, M.V. was asleep in the rec room. After he woke up they talked and Mr. V. came out with what happened between him and T.D. and treated it as if it was a joke. He said he tried to hook up with T.D. and gave her a few rubs and she would have nothing to do with it and so he left. The tone used suggested that he was treating it as if it was not a serious matter. Mr. K. was upset and disappointed. After that disclosure Mr. V. went home.

[75] D.K. started getting ready for the wedding but T.D. texted him and told him she had something she needed to tell him. He responded by saying M.V. had already told him what happened and she texted back by saying that she did not think Mr. V. told him the truth. She asked him to come over to E.L.'s house so they could talk.

[76] He went over and she came out to meet him in his car. She told him what had happened. She was a wreck and had trouble holding herself together at the end of the conversation. She was crying and was very nervous.

[77] Mr. K. then received a text from his brother M.K. that M.V. wanted him to go over to his house to pick something up. So Mr. K. did that and went into the house and had a conversation with M.V.. Mr. V. was upset and crying. He apologized to Mr. K. and then wanted to apologize to T.D.. Mr. K. gave him his phone as he said the T.D. probably would not want to talk to him. Mr. V. called her and Mr. K. heard Mr. V. say to T.D. he was sorry for what happened, that he did not remember anything and you have my sincere apology.

[78] It was a very short conversation. After the conversation Mr. V. was still upset and seemed nervous and crying. This was a total 360 degree change from his attitude earlier when he was treating the situation as a joke.

[79] There were approximately two other calls from M.V. to Mr. K. later that day and in the last one M.V. said that he thought the police were getting involved.

[80] Within a day Mr. K. was interviewed by the police and he has not spoken to M.V. since.

[81] In cross-examination Mr. K. says that his relationship with T.D. was in the very early stages and that he liked her and hoped that the relationship would have a future. He does not remember expressing any doubts about that possibility. He has no memory of being upset with T.D. about her talking to the two bouncers at the Gables bar.

[82] He cannot remember any conversation in the taxi about a threesome and he cannot remember being upset with T.D. that night.

[83] Mr. K. says that his bedroom was downstairs at the time but he did not see where T.D. went. Ordinarily he sleeps downstairs. He thinks T.D. had been to his residence twice and she had been in the basement area and also the kitchen but had never been upstairs and he had never given her a tour of the house.

[84] He stated again in cross-examination that the first explanation given to him by Mr. V. was that he had tried to hook up with Mr. K.'s girlfriend last night – not that he had.

[85] He is adamant that he did not say to M.V. that "she would do that, she is that kind of girl". That conversation never took place.

[86] In cross-examination Mr. K. says that both he and M.V. drink and on occasion both of them drink more than they should.

[87] D.K. was a good witness and was not shaken in cross-examination.

ADMISSIONS

[88] The Crown tendered an agreement with defence counsel with respect to admissions.

[89] In summary those admissions include:

(a) That J.P. was sleeping on the long couch in the rec room in the residence at S[…] on the night in question. He was the son of P.P. who lived at that residence with C.K., the mother of D.K.. He was woken up in the middle of the night by M.V. who wanted to sleep on the longer couch. J.P. said "no" and went back to sleep. When he woke up in the morning M.V. was asleep on the shorter couch. He knew who M.V. was but he had not met him before.

(b) That T.D. attended at St. Joseph's hospital in London on 21 July 2013 and that Kamala Murphy examined her and took samples from inside her vagina and from her external genitalia including vaginal swabs and external genitalia swabs. Samples were sealed, labeled and properly stored at the hospital as a sexual assault evidence kit.

(c) That on 21 July 2013 Detective Constable Heather MacRae of the Huron County Ontario Provincial Police obtained that sexual assault evidence kit from Kamala Murphy.

(d) That DNA tests were conducted on D.K. and that his semen was not found in the body of T.D..

(e) That DNA tests were conducted on M.V. and his semen was found to be in the body of T.D..

[90] This concluded the Crown's case.

DEFENCE EVIDENCE

[91] The defence called evidence beginning with M.V..

M.V.

[92] M.V. was born on […], 1994. At the time of the trial he was 20 years old. He was raised in E. and has lived his entire life there. He lives with his father M.V.2. His mother lives in London. He has an older sister Brittany who lives with his mother.

[93] He attended school in E. graduating from S.H. Secondary School in June of 2012. Since then he has attended Fanshawe College for a year and has been accepted at Lakewood College in Alberta for firefighting. He has deferred this activity because of hockey.

[94] Hockey is a big part of his life. Last year he played for a Junior B team called the S.C.. His hope is that he can at some point attend a professional camp.

[95] Mr. V. works part time for his father who owns a cleaning and blasting company.

[96] He and D.K. have been friends for many years. They became good friends in grade 9 and ultimately became best friends and were together all the time. He has regularly stayed at the K. residence. When he stayed over he always slept in the basement.

[97] He had met T.D. at high school and saw her at a few parties. He did not hang out with her group of friends. After she started going out with D.K. he then met her two or three times, always with D.K..

[98] He remembers the events of 19 July 2013. He had been in London that day participating in the Total Package Hockey program at the London Knights training centre. He then returned to E. and worked for his father in the afternoon. In the evening he went to Jolene McC.'s house just outside Mount C.. He brought to her place half of a 26 ounce bottle of vodka from his father's bar at home. When he arrived there were a number of people visiting, but D.K. was not there until later. While there he had three or four drinks. The drinks were not measured and they were what was called a "free pour". D.K. arrived and had something to drink and then they left Jolene McC's at about 11 or 11:30 PM and took a cab over to Gables.

[99] He remembers seeing T.D. at Gables and thinks she got there before them.

[100] As for the incident alleged to have happened in the bar about him grabbing her breasts from behind, Mr. V. says it did not happen. He also says there is no occasion previously when he had done anything of that nature.

[101] He had more to drink at Gables, probably 3 to 4 more drinks. In all he had 6 to 8 drinks. At Gables they were single shots. He was feeling good and still in control of himself, although he would not drive a car.

[102] He remembers the lights coming on in the bar and being told to get out. He thinks this was around 2:30 AM. This is what he understands the practice to be.

[103] Everyone walked outside and he saw a fellow selling pizza so he bought some and sat down on the patio to eat it. D.K. did as well. T.D. was also there. T.D. got a cab and the three of them jumped in.

[104] He sat in the front and T.D. and D.K. sat in the back. They started out and then decided they had to pull over so that he and D.K. could relieve themselves.

[105] They got back in the cab and Mr. V. got into the backseat. When he got into the backseat he had decided that he was going to hit on Ms. D.. That was what was on his mind. He did not tell Mr. K. he was going to do this – but there was a joke made by him about a threesome. It was a joke in which T.D. did not participate.

[106] Mr. K. fell asleep after a few minutes. Mr. V. did not try to wake him up and cannot remember T.D. trying to wake him up. The evidence of the accused is that he and T.D. looked at each other and were smiling and their hands ended up on each other's legs and they started kissing. She did not resist. He touched her leg and breast and she touched his leg and penis, all above the clothes. She did not say she was not interested and she did not tell him to stop.

[107] When they arrived in E. Mr. K. was still asleep. The cabbie was paid and then Mr. V. had to lift Mr. K. out of the cab and then helped him stumble into the house. Mr. V. does not know how much Mr. K. had to drink, but he looked drunk.

[108] D.K. went upstairs and Mr. V. went downstairs. Mr. V. says that T.D. went downstairs right behind him. He then went through the rec room into the bedroom and turned on the light and realized that M.K. and S.M. were there and appeared to be asleep and he jumped on the bed between them. They woke up and told to him get off and get out and shut the light off. Mr. V. did that and went back into the rec room.

[109] In the rec room there was a guy sleeping on the long couch. He woke him up and asked if he could have that particular couch. This was J.P.. He was told that no he could not have that couch. Mr. V. did not lie down on the shorter couch but rather went back into the bedroom. The other couple were still in bed and again asleep and T.D. was in the second bed. Mr. V. says she was awake. His evidence is that he had only been out of the room for a couple of minutes.

[110] When he went back in she was laying there looking at him. He got into bed with her. She never told him to get out or to stop. She did not try to push him away. The conversation that took place consisted of her saying, you are D.K.'s best friend and we should not be doing this. Mr. V. said to her that he will not find out and it does not matter. Mr. V. cannot remember anything else about the conversation. It was brief and not much of a conversation.

[111] They started getting closer and rubbing each other and there was mutual kissing. There was never any resistance from her at all and there was never a break. There was no opportunity for her to use her phone. He says that he was rubbing her breasts and probably her vagina over her shorts. He had on his jean shorts and boxers and no shirt. Mr. V. says that he took his shirt off when they got out of the cab because it was hot.

[112] Mr. V. says he eventually took off his shorts but left his boxers on. She was rubbing his body and his penis. He never held her down and she never said anything about not wanting to have sex.

[113] He got on top of her and she put her arms up and he took her shirt off. She had her bra on and he tried to take it off but could not do it. She still had her shorts on and she lifted up her buttocks so that he could pull them off. She did not try to pull her shorts up on multiple occasions.

[114] He says he licked her vagina and then they had sexual intercourse. He says the intercourse probably lasted 10 minutes and there was no objection from her and he thought she enjoyed it. He did ejaculate.

[115] Afterwards they lay in bed together and she started to get grumpy and it got awkward. He remembers her saying, we should not have done this, you are D.K.s best friend, and that is all he can remember. He put his shorts on and went out to the couch. He could not find his boxers. When he left he did not see her put her clothes back on.

[116] He lay down on the short couch and fell asleep.

[117] When he woke up in the morning he remembers he spoke to M.K. and asked where D.K. was and was told that he was driving T.D. home. When D.K. came back they had a conversation. He said I have to tell you something and Mr. K. said I probably already know. And then Mr. V. said "yeah I hooked up with T.D. last night" and D.K. said "she was that kind of girl, she would do that". Mr. V. kept saying sorry because Mr. K. was angry with him. He did not say to Mr. K. that he gave her a few rubs and she would have nothing to do it. He cannot remember saying that. It is possible that he said he gave her a few rubs and then did not know what to say after that.

[118] M.K. drove M.V. and D.K. out to get their cars at Jolene McC's. They then went their separate ways.

[119] Later D.K. came to his house, ostensibly to pick up a belt for the wedding, but they had a further conversation. Mr. V. still felt bad, particularly now because T.D. was not going to the wedding with Mr. K., and so he asked to use Mr. K.'s phone to call T.D.. He did indeed have teary eyes because he realized this was going to have an impact on their friendship and that it was ruining D.K.'s involvement in the wedding.

[120] He called T.D. and said he was sorry for what we did and she said okay couple of times and hung up on him. He cannot remember saying he was drunk or that he could not remember.

[121] Later in the day as he was driving out of town and was near the police station he saw two girls walking into the police station that looked like T.D. and possibly her sister. He wondered what was going on and called D.K., and Mr. K. said that T.D.'s sister was taking her to the police.

[122] In cross-examination Mr. V. said that he was 6 ft. 2 or 3 inches tall and weighed about 200 pounds in the summer of 2013. He was in very good physical condition because of his workouts for hockey. He admitted that he had the physical ability to do what T.D. said. He was stronger than her and she was no match for him physically.

[123] In cross-examination he agreed that his conversations with T.D. on 19 and 20 July 2013 were only the following:

(a) in the Gables there was a brief conversation with other people around and nothing was said about sex.

(b) in the cab he said something about a threesome.

(c) when they got out of the cab there were no words said that he can remember.

(d) in bed there was an initial conversation about whether they should be doing this.

(e) after the sexual intercourse there was a grumpy conversation.

(f) lastly, there is a conversation on the phone the next day when he said he was sorry.

He cannot remember any other conversations with T.D..

[124] He knew that T.D. and D.K. were a couple. Indeed, after they left the bar he saw T.D. sitting on D.K.'s lap. He also knew the T.D. and D.K. had a sexual interest in each other and to the point where they got into the cab she had shown no sexual interest in him.

[125] He says that it was in his head in the bar to hit on T.D. in a sexual way and that he was going to try and hook up with her. There was nothing to lead him to believe that she wanted to be involved with him sexually.

[126] He thought the threesome line was a joke and he jokes around with stuff like that a lot.

[127] He agrees as well that when he got into the backseat it was in furtherance of a plan to hit on her.

[128] He agrees that alcohol has an impact on memory, but not that night. He thinks he remembers everything. He agrees that he made a wrong decision to have sex with his best friend's girlfriend, but on this night he was intoxicated by alcohol. He also agrees he removed his shirt when they got to the K. home, although it was done because it was hot and not to impress her.

[129] He agrees that the sexual interaction started with no conversation, however he would remember if she had said no. The things he cannot remember are small details, for example who put whose hands on whose legs first.

[130] He agrees that there was no conversation wherein she said yes. The sexual contact was based on her actions. He said in cross that when he was with a girl, you do not ask if they consent when it is clear that they want to have sex. Otherwise he did not get the "memo". He figured if someone did not want to have sex, they would do something about it. He believed that all of the sexual contact was consensual based upon her actions in the taxi.

[131] As for him jumping on the bed and waking up S.M. he agrees he was being annoying and it is how he and his friends carry on. He then said that when he is drinking he is bold. This also applies to his waking up J.P.. This was him again being bold.

[132] In cross he says another odd thing in that he did not ask her if he could get in the bed because he did not think of it as her bed.

[133] Based upon her actions in the cab he thought she wanted him in the bed. He agrees that nothing she did in the house said come into this bed, but she also did not tell him to get out.

[134] Finally in cross when he was talking to D.K. he tried to play down the situation because he knew what happened was wrong.

[135] Mr. V. was not a good witness. He displayed immaturity in his responses, for example saying that he did not get the "memo" and that he was bold when he was drunk. He also did not seem to realize how juvenile his behavior was, for example when he joked about a threesome or when he insisted on fiddling with the taxi driver's radio.

[136] In cross-examination it became very clear that there was minimal communication between him and T.D. and Mr. V. did not seem to appreciate that. It also appears that when there were words exchanged he was not listening.

Thomas Kneale

[137] The defence also called Thomas Kneale. Mr. Kneale was the taxi driver on the ride back to E.

[138] He noted that the larger man, Mr. V. was on his own and the other two were a couple. Mr. V. got into the front seat initially. The men then needed to get out and urinate and they did so. Mr. Kneale's evidence is that Mr. V. then got back into the front seat and was fiddling with the radio. Mr. Kneale got upset with that and at some point they stopped again and Mr. V. then got into the backseat. Mr. Kneale says that Mr. V. took his shirt off at that point.

[139] Mr. Kneale left his radio on and could not hear any conversation in the backseat. There was some rustling and he thought perhaps there was some necking going on but he could not see anybody. At best he could see the tops of their heads, if he looked. However he did not want to be a voyeur and so he did not look. He did not hear any words that were distinguishable and he did not hear any slapping or pushing sounds. He did not hear anything that suggested the girl was in any distress.

[140] When they got to E. the larger man lifted the smaller man out of the cab.

[141] In cross-examination Mr. Kneale agreed that the tall man was being obnoxious, both with respect to the use of the radio and his behavior in general. He said that he left the radio on because he did not want to listen to them in the back. He used the radio to tune them out.

[142] He did not see any specific physical contact, nor did not see any necking. He thought perhaps they were necking because it was quiet and heard some rustling. He did not hear any kissing sounds.

[143] Mr. Kneale was a good witness and careful in his evidence.

Kyle C.

[144] The defence then called Kyle C. who simply testified that he was at Gables on the night in question and he was not involved with T.D. in any altercations associated with her.

[145] He agreed that Mr. V. is fairly loud even when he has not been drinking. He says that he never was upset with the accused in the bar that night or grabbed him to stop him from doing something.

[146] He did note that as everyone was leaving the bar he saw T.D. leaning on D.K.. He believed D.K. and T.D. were a couple.

[147] In cross-examination Kyle C. said that there were maybe 150 people in the bar that night. He also said that he cannot remember specifically what time the bar closed.

[148] Kyle C. was a good witness.

S.M.

[149] As its last witness the defence called S.M..

[150] S.M. was in the bed that M.V. jumped on. He woke both her and M.K. up. She is not sure exactly when this happened. She told him to get off and he did and he laughed and then she told him to come back and turn off the light, which he also did.

[151] She saw no one else in the room at that point but heard someone in the washroom and heard that person jiggling the lock. She knew the lock was tricky but that it would open and so she did not get up to assist. When M.V. woke them up she cannot remember seeing T.D. but she did hear a girl's voice shortly after M.V. left the room.

[152] After M.V. left the room she went back to sleep and did not see him again until the next morning. Nothing else disturbed her sleep through the night. She did not hear anyone say stop or do not do that.

[153] She says the beds are maybe five feet apart, however in looking at Exhibit 5, being a photograph of the downstairs bedroom it would appear that the beds are 6 to 7 feet apart.

[154] In cross-examination S.M. said that she knew that M.V. was a strong fit young man. However, on the day in question he seemed to be intoxicated. She told the police that on a scale from 1 to 10 he was about an 8. He seemed very drunk. Also in cross S.M. said that she did not hear anything after she went back to sleep including any 10 to 20 minutes of consensual sex. Whatever happened in that bed did not wake her up. After she heard the jiggling of the lock, this being after the light is turned off, she knew that someone was coming out of the washroom and getting into the other bed. After what she thought was 10 minutes she fell asleep again.

[155] S.M.'s evidence was straightforward and to the point.

Cst Phil Hordijk – Agreed Evidence

[156] That concluded the viva voce evidence for the defence. There was however a further agreement with reference to evidence with respect to a search conducted by Constable Phil Hordjick. It was agreed by Crown counsel and the defence that Officer Hordjick had searched the bedroom and the area where the assault allegedly occurred and that he found a belt and black boxers. They were seized by the police.

ANALYSIS

[157] After receiving this evidence it is important to review certain principles in terms of assessing credibility and analyzing exculpatory evidence.

[158] In assessing credibility it is helpful to take into account the commentary in R. v. White, (1947), 89 C.C.C. 148 (S.C.C.), which, although using gender insensitive language, sets out the basic considerations. At page 151, the court states that:

The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank, or whether he is biased, reticent and evasive. All these questions and others must be answered from the observations of the witness' general conduct and demeanour in determining the question of credibility.

[159] However, the Ontario Court of Appeal in R. v. Gittens, [1994] O.J. 2140, R. v. Stewart (1994), 18 O.R. (3d) 509, and R. v. Nicholson (1995), 45 C.R. (4th) 130 has cautioned trial judges against too heavy a reliance on demeanour. These cases stand for the proposition that although it is tempting to believe witnesses who have a credible demeanour, it is wrong to equate a credible demeanour with reliability and accuracy. It is an error to find a witness credible on the basis of demeanour alone, especially in the face of significant evidence contradicting that witness.

[160] Further in R. v. Gostick, 137 C.C.C. (3d) 53 (CA) [1999] the Ontario Court of Appeal has adopted the analysis of credibility set out in Faryna v. Chorny, [1952] 2 D.L.R. 354 at pp. 356-7 (B.C.C.A.), which provides as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[161] It is also useful to remember that the Ontario Court of Appeal in R. v. Krack (1990), 56 C.C.C. (3d) 555 at p.561 has emphasized that it is an error to decide a credibility contest on the basis of determining which version is true. The burden is always on the Crown to prove its case beyond a reasonable doubt on the totality of the evidence.

[162] Finally, I direct myself in accordance with the dicta set out by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at p. 409 as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[163] Beginning with the W.(D) analysis I have to ask myself whether I believe the evidence of the accused in this case. His evidence cannot be looked at in isolation. It is necessary to examine it in light of the evidence as a whole.

[164] After consideration of his evidence in the context of the case at large, I find that I do not believe the accused for the following reasons.

[165] His actions on the night in question were completely incongruous with ordinary behavior. First he barely knew T.D.. Next she was his best friend's girlfriend. She and D.K. had been affectionate with each other in his presence. He has minimal conversation with her all evening.

[166] Next he is behaving in a predatory manner towards her from his first inclination in the bar that he might hit on her. This when his friend is still very conscious and very interested in his girlfriend. He betrays his best friend by groping her in the taxi and then getting into her bed with no invitation and no words being spoken.

[167] In addition he is seriously intoxicated and his memory of the events in question is spotty and selective.

[168] By his own admission he is bold when he is drinking, which I think means that he is obnoxious when he is drinking. Examples on this night alone are robust. He insists on annoying the taxi driver by adjusting the radio. He says they have to get out so they can urinate and then they urinate on the street. Then he gets into the backseat of the car at some point and quickly takes advantage of the fact that his friend has passed out. When they get to the K. residence he throws his body in between two sleeping adults and thinks it is funny. When he is kicked out of the bedroom he goes out into the rec room and demands the longer couch from a sleeping man, presumably because he is taller. At some point he takes his shirt off so that he can display his physique to T.D.. This is all indicative of a person who is seriously intoxicated, who does not read social cues properly, who does not listen, who has low impulse control, who insists on having fun at the expense of others, who shows little respect for the persons around him and is determined to get what he wants.

[169] I also have concerns about his credibility with respect to his behaviors the morning after the events complained about. He is not honest with D.K. and he apologizes to T.D. for what on his statement of what happened he does not need to apologize for. I also note that he became worried when he saw T.D. going to the police station. In my view this is reflective of his awakening realization of what he had done.

[170] Simply put M.V. is not to be believed. His evidence is discordant with ordinary behaviour and is not consistent with what was reasonable in that place and in those conditions. I reject his evidence with respect to him having the consent of T.D. to sexual activity.

[171] The next inquiry is whether there is something in his evidence that raises a reasonable doubt. In my view there is nothing in his evidence alone that raises a reasonable doubt. There is nothing he has advanced that alerts the court to an issue that suggests a reasonable doubt. On the first count he simply denies the event happened. On its own his denial having been rejected does not create any doubt. On the second and third count for his evidence to raise a reasonable doubt after it has not been believed is difficult. The acts are not denied. It is whether there was consent. That is dependent upon the assessment of the evidence of the complainant.

[172] It is noted that in this case the defence does not plead honest but mistaken belief in consent, but instead says unequivocally that T.D. did in fact consent.

[173] The third question in the W.(D.) analysis is a determination of whether on all the evidence has the Crown proven the case beyond a reasonable doubt.

[174] The evidence of T.D. is powerful. She was an extremely good witness who did not shrink from what can only be described as a withering cross-examination. Her description of the events complained about is compelling.

[175] She was with her boyfriend and had given no physical or verbal cues to the accused that she was interested in having sex with him. Her plan was to go back to D.K.'s house and spend the night with him. Then he falls asleep. There is nothing in the facts that suggests that she immediately switched her attention to the accused or that there would be any reason for her to do so.

[176] The defence argues that sexual interaction can happen in a multitude of ways. That is certainly true. But what the defence wants the court to do is speculate where there is no foundation. There was minimal verbal communication between the parties and no overt physical indicators that Ms. D. wanted to have sex with Mr. V.. At best – even if I accept his evidence – she smiled at him. That is not enough for the court to then conclude that she had a sexual interest in him.

[177] It is important to comment on the major criticism of Ms. D.'s evidence by the defence, that is to say, why did she not call out to the taxi driver and the persons in the other bed.

[178] In the case of the taxi she says that she thought she had dealt with it by pushing him away twice and saying no. She is an educated modern independent woman who acted forcefully to control the situation. In her view she had no need to call out to the driver. This seems perfectly reasonable in the circumstances.

[179] However in the bedroom she was confronted with a much more aggressive threat and she was paralyzed. In her words she froze. This was happening quickly. She had also had a lot to drink and was very tired. She was confused because her boyfriend was not protecting her. She was a virtual stranger in the house. She did not know the people in the neighbouring bed. Her inability to coldly calculate what she should do was not in my view irrational. It is in keeping with the fact that victims of crime react in many different ways to the unfolding of events. Sometimes they are unable to respond with dramatic words or gestures. In the circumstances of this case I think it is quite reasonable that Ms. D. did not shout out for help. Probably she should have – but it is understandable that she did not.

[180] Let us not forget that this is still the same woman who had successfully exercised control over the situation in the taxi. When this attack commenced in the bed she initially told him to get out and in her evidence she says that should be enough. And it should be.

[181] As for S.M. not hearing anything – the facts are that she did not hear anything – consensual or non-consensual sexual activity. Her evidence in that sense is neutral.

[182] In terms of the attacks on Ms. D.'s credibility with respect to the physical movements in the bed, I find that all of the variations between her statement to the police and her evidence in chief and cross are minor in nature and do not go to the heart of the matter. This is an event that is happening in a moment of stress and it would be impossible for anyone to play it back in their mind as if it were recorded.

[183] It is important to remember that M.V. is 6 ft. 2 or 3 inches tall and is 200 lbs and is in prime physical condition and is very strong. Ms. D. is 5 ft. 4 in tall and is 120 lbs. Indeed, in cross Mr. V. said that he had the physical ability to do what Ms. D. said he did.

[184] There is also the corroborative evidence from the physical exam by Ms. Murphy. There are marks on Ms. D.'s body in at least two of the places where she says that Mr. V. was pinning her down – her right shoulder and her leg.

[185] Another corroborative fact comes from the defence. M.V. says that Mr. D. became grumpy after the sexual intercourse. In my view this is simply further confirmation that she did not want to participate in the sex act. She was unhappy because she had not consented.

[186] Lastly I should comment upon the argument made by the defence that T.D. was motivated to lie about the sexual assault because she was either not prepared to admit that what had actually happened was consensual sex or that she wanted to restore her status somehow with D.K. by pointing the blame at M.V.. This is a very weak argument. As said by Ms. D. in her testimony she was not concerned about D.K., she was concerned about what had happened to her. Moreover if she had wanted to avoid censure the easiest road would be to say nothing.

[187] In her evidence there are some issues that were developed in cross-examination that have been explained by Ms. D.. For example the failure to state in chief that she had some marijuana and drinks before she got to the Gables. Also there was the issue about not mentioning Kyle C.. Again explained. Although as I will mention in a moment, that raises a further issue. As for the jockey shorts being found in the room when Ms. D. thinks that Mr. V. had put them back on and walked out of the room, it may well be that Ms. D. was mistaken. Nothing turns on it. None of these examples impact on the credibility and reliability of the evidence of Ms. D..

[188] I accept the evidence of T.D..

[189] For all of these reasons I am of the view that the Crown has made out its case with respect to counts 2 and 3. But I have concerns with respect to count 1.

[190] There is a problem with count 1, being the allegation of a sexual assault at Gables. Kyle C. says that he was not involved. Ms. D. was mistaken in thinking it was he who came to her rescue. Based upon Kyle C.'s estimate that the venue was 75 per cent full and that at capacity the place would hold 200 people, that means there were perhaps 150 people in the bar. They are at close quarters and there is no doubt constant milling about. It is possible that Ms. D. was mistaken not just about Kyle C. but also about Mr. V. being the person who grabbed her. She says that the intervener looked like Kyle C.. It is possible that the person who grabbed her looked like Mr. V.. The evidence is that the lighting in the bar was very dark and that there are many people there who have had way too much to drink. It is quite possible that someone else was the perpetrator. It may have been Mr. V. but I am not satisfied that the Crown has proven that fact beyond a reasonable doubt.

[191] However the great weight of the evidence establishes in my mind that the Crown has proven beyond a reasonable doubt that the accused committed the sexual assaults described in counts 2 and 3, that is to say the sexual touching in the taxi and the act of intercourse in the bed at S[…] in E.. Both sexual events occurred without the consent of Ms. D..

CONCLUSION

[192] There will therefore be a finding of guilt on each of counts 2 and 3. Count 1 is dismissed.

Released: October 3, 2014

Signed: "Justice Brophy"