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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: May 11, 2015

Court File No.: TORONTO 4817 998 14 75004639 00

Between:

Her Majesty the Queen

— AND —

Kevin Prince Murdock

Before: Justice Richard Blouin

Heard on: March 23, 24, and 25, 2015

Submissions heard on: April 30, 2015

Judgment released on: May 11, 2015

Counsel:

• M. Galluzzo — counsel for the Crown
• S. Dallal — counsel for the defendant

BLOUIN, J.:

Introduction

[1] Kevin Murdock faces five charges arising from an incident in his apartment starting on the evening of September 8, 2014, and ending in the early morning hours of September 9. It is alleged he committed the following five offences against the complainant, R.K.:

• Utter Death Threat
• Sexual Assault
• Unlawful Confinement
• Robbery
• Administer Overpowering Drug

[2] The Crown called the complainant, and her boyfriend. The defendant called no evidence. Counsel provided an Agreed Statement of Facts, and documents were filed on consent. Since samples taken from the complainant by a nurse contained the defendant's DNA, the only issue regarding the sexual assault allegation is that of consent. Regarding the other counts, and whether or not the Crown has proven the absence of consent to sexual activities, the defendant maintained the complainant was not credible, and her evidence was not reliable.

Crown Evidence

R.K.

[3] After work, around 9:30 pm, on September 8, 2014, R.K. wanted to buy some marihuana. As was her normal practice a couple of times a week she went to the corner of Queen and Sherbourne, which was close to her residence, but could not locate any of the dealers she knew. Mr. Murdock approached her and, after a short discussion, told her he knew where she could get some weed. They entered a convenience store, bought a soft drink, and went to his apartment in Moss Park.

[4] According to the CCTV in the lobby of S[…] Street, they arrived at 9:51 p.m. They spoke in his apartment (X) about him getting the weed for $60. Ms. R.K. did not think she had given him the $60 when he left the apartment to get the marihuana, (although shortly after in her testimony, she recalled giving him the $60 before he left). This was about 10-15 minutes after she had arrived.

[5] Mr. Murdock came back about 10 minutes later, smoking crack, indicating that the person he hoped to get it from did not have any, but that he could get it from other friends. Ms. R.K. handed him her cellphone, which he used. Murdock indicated that a friend would attend with the weed. At this point, Ms. R.K. had not asked for her money to be returned because she was content to wait. About 30 minutes later a young man, who the complainant described as black-skinned and slim, arrived.

[6] After some small talk, the young man went to the bathroom. Mr. Murdock suggested the complainant deal with the young man in the bathroom. Bizarrely, the complainant opened the bathroom door, and asked the young man, while he was seated on the toilet, to hand over the weed.

[7] Both men told her that she needed to provide another $20. Ms. R.K. told them she had no more to give. Mr. Murdock maintained that she did, grabbed her purse, and started ripping the inside of her purse. When Ms. R.K. attempted to regain her purse, Murdock blocked her with his arm, and an angry scuffle for the purse ensued. The complainant wanted to phone her boyfriend, but the defendant grabbed the phone away and pinned her down, around her chest.

[8] The defendant next held his hand to the complainant's throat, and demanded money. She thought he had a knife but never saw one. He took her bank cards and demanded the PINs. He threatened to kill her and the complainant feared that he would. Ms. R.K. bent her debit card so it wouldn't work, and then tried to hide it. Throughout this attack, the young, slim man was blocking the doorway. The defendant was able to get one of her cards, and left the apartment for around 15-20 minutes.

[9] When the defendant returned, he got his friend to leave and turned off the lights. He threatened to kill her if she didn't tell him where the money was. He told the complainant to smoke some crack to make her "horny." She didn't want to, but was forced by the defendant to take two "puffs." At that point, the defendant sat down beside the complainant on the couch, pulled up her dress and pulled his pants down. The following questions were asked by the Crown:

Q. Okay. And he's sitting beside you. What does he do at that point?

A. Then he like pulls up my dress, takes his pants down. So then….

Q. Did you say anything to Mr. Murdock while he was pulling up your dress?

A. Yeah. I was like, "I have herpes," like, "You don't wanna do this." And like, "At least put on a condom."

Q. And why did you say that?

A. 'Cause I didn't wanna catch a disease.

Q. Okay. What did Mr. Murdock say?

A. I don't think he really said anything, but he did put on a condom.

Q. Did you ever tell Mr. Murdock that you didn't want to have sex with him?

A. Yes. I said, "Please stop."

[10] The defendant applied a condom and attempted to put his penis in her vagina from the rear. She was crying and he told her to shut up. He was unsuccessful at first because he "wasn't hard enough." The complainant was crying, resisting, and telling him to stop. She does not think he attempted to do anything sexually to her while not wearing a condom.

[11] He then was rubbing up against her and then "he did get in a couple of times or something." When asked what she meant by a couple of times she said, "like I don't know. Maybe like four times or something which last for about 30 seconds." He still tried to enter her for 3-4 more minutes. Mr. Murdock then gave up and instead attempted to get her to put his penis in her mouth. She thinks he might have changed condoms, because she saw a "used" condom on the floor. He had a condom on when he pushed her head towards his penis and told her that if she performed she might get her phone back.

[12] The defendant put his penis in the complainant's mouth but stopped after about 2 minutes since "it wasn't working for him." Throughout this time the complainant was begging the defendant to stop. When he did, the complainant asked about getting her property back. The defendant told her he would but that they had to go to another apartment. The defendant took the complainant to the elevator, got out, and went down some stairs, telling the complainant he would be back in 30 seconds. She waited alone for 30 seconds (she later testified it could have been 2 or 3 minutes). When asked by the Crown why she did not leave, the complainant said she thought he would be right back with her property.

[13] She again returned to his apartment. He left the apartment at some point thereafter for 5-10 minutes. Again, the complainant did not leave even though she had opportunity. She said she was frightened he might be in the hall. He returned with another friend (older). While the complainant was talking to the friend, Murdock left yet another time. This time the complainant left for home before he returned to the apartment, feeling that the defendant was not returning. Even then she waited about half-an-hour. At 4:35 a.m. (again, according to CCTV) she left without her earphones, smart phone, and iPod. The police recovered her earphones later that day, but not the electronics.

[14] When she returned to her home, she woke up her boyfriend and told him she had just been raped and robbed. When she started to put her pajamas on, her boyfriend questioned why and demanded they return to find the perpetrator, or involve the police. She reluctantly agreed, although she wanted to go to bed.

[15] In cross-examination, Ms. R.K. admitted a very different tenor to the discussion with her boyfriend when she arrived home later. Before she told him about her victimization, he was angry with her. He said, "What the fuck? Where have you been?" Although she claimed to not remember, she then agreed that her boyfriend might have said, as he told police in his statement, "Are you messing around with me? Are you making excuses for like being out this late, screwing around or something?" Although she first denied there were relationship problems her boyfriend wanted to discuss with her after work, she then agreed that exactly that was planned.

L.K.

[16] On the evening of September 8, 2014, L.K. arrived home from work around 11:30 p.m. Because he expected Ms. R.K. to be home around 9:30, and she was not, he called her cell phone from a pay phone. She told him that she had gone with a man (the defendant) to his apartment to buy marihuana. When he found out she had been there for close to two hours, he told her to forget about the money she had given the defendant and leave. She agreed and told L.K. that she would be home in a couple of minutes.

[17] Between 12:30 a.m. and 2:40 a.m., he called her four or five times to no avail. He eventually fell asleep, but was awakened by Ms. R.K. at approximately 4:30 a.m. She was crying. When L.K. asked what happened, the complainant said that she just got jumped by these two guys and was robbed and raped. When asked by whom, she responded by the guy who was supposed to sell her weed. This man also tore the lining in her purse, took her bank card and tried to get her PIN. Mr. L.K. observed the torn purse lining.

[18] Ms. R.K. started to get into her pajamas, but L.K. told her to get dressed in order to confront the attackers, or call police. In front of the defendant's apartment building, the complainant and Mr. L.K. flagged down an ambulance, and disclosure of the attack was made to the EMS attendants. Police arrived 5-10 minutes later.

[19] One police officer accompanied L.K. back to his apartment where the complainant's clothing was retrieved. Afterwards, the complainant and Mr. L.K. attended the hospital and Ms. R.K. gave a videotaped statement to police at 2 p.m. that afternoon.

The Law

273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

[20] The defendant did not testify, but argued the Crown failed to prove absence of consent beyond a reasonable doubt. The law in this area is well established. In R. v. Ewanchuk, the Supreme Court of Canada wrote the following:

[25] The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour.

[26] The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred.

[27] Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word "consent" itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, "Sexual Offenses and Consent" (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective. The approach is purely subjective.

[29] While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

[30] The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

[21] Even if I find the complainant did consent, I must consider the following provisions of the Criminal Code:

273.1 (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

265. (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

Findings

[22] Ms. R.K. was a measured and thoughtful witness. She did not, in my estimation, attempt to embellish the allegations regarding both the physical and sexual acts, nor did she attempt to minimize her shortcomings. She was appropriately emotional at times when one might expect that reaction to reliving a painful evening. That noted, there existed in her evidence a number of areas which created doubt about her position that she did not consent to the sexual activities. Both her credibility and her reliability were undermined by parts of her evidence which impacted not only the Sexual Assault allegation, but all charges. There were three significant areas of concern. The first impacted on her reliability. The second and third impacted credibility.

[23] Firstly, Ms. R.K. was not a reliable historian of the events that night. While I appreciate that Ms. R.K. could only be expected to approximate time frames, her memory of length of time varied throughout her testimony, and did not come close to accounting for the nearly 6.5 hours she spent in the defendant's apartment. She has had an alcohol addiction and, after she stopped abusing alcohol, commenced an opiate addiction. She had snorted hydro morphine before she left work that night, and smoked crack cocaine at the defendant's apartment (maintaining it was not voluntary). Many times in her evidence she was unsure regarding the chronology. One glaring example in examination in-chief was questioning about when $60 was given to the defendant. Within the space of a few minutes her testimony varied from not thinking she gave Murdock $60 before he left the apartment to obtain marihuana, to then not remembering, to finally, definitely, giving him the money before he left the apartment.

[24] Secondly, Ms. R.K. had many opportunities to leave the defendant's apartment, but did not. She had, according to her account, been robbed, raped, threatened with death, and feared she would be killed. However, during three separate and distinct time periods after that, she had significant opportunity to leave, yet she remained. On top of that, she had promised her boyfriend around 11:30, five hours before she left, that she was coming right home. Although she reasoned that she wanted to recover her property, and feared reprisal if caught fleeing, staying in that building, in the context of her life being in danger, makes little sense.

[25] Thirdly, Ms. R.K. had a motive to fabricate. Although she was not willing at first to admit that Mr. L.K. was angry that she had been at the defendant's apartment, it became clear in cross-examination, that Mr. L.K. was angry and confronted Ms. R.K. when she first arrived home. In-chief, she testified that the first thing said was said by her, regarding her victimization. In cross-examination, she admitted that she was confronted by her angry boyfriend before she disclosed the rape and robbery. She was also aware that he had, five hours earlier, told her to forget about the $60 and leave. She told him that she was leaving in a few minutes. She would have known he was not going to be happy when she arrived home at 4:30 a.m., and she eventually agreed that her boyfriend might have accused her of making up excuses for being out late "screwing around."

[26] In addition to the above significant concerns I had involving Ms. R.K.'s evidence, there existed a number of minor concerns:

• She maintained she had been forced to smoke crack by the defendant. It is difficult to accept that he could force her to inhale, and it seems like a convenient explanation to account for the existence of the drug in her system that would inevitably be discovered by forensic testing.

• In addition, she maintained throughout both examination-in-chief and cross-examination that she only took two puffs. Contrast that to her admission to the sexual assault nurse that she consumed four-five puffs of crack cocaine.

• When the complainant's boyfriend called almost two hours after she entered the defendant's apartment, he told her to leave immediately and she said she would. Not only did she remain at the defendant's apartment for another four hours, but she did not even mention the phone call when questioned by the Crown. Descriptions of time periods throughout a six-hour timeframe while using drugs is obviously not an exercise in precision, but to leave out a conversation with her boyfriend from her account of the evening, is, at the very least, surprising.

• When it became clear Mr. Murdock was intent on having sex, she first tells him that he does not want to do this because she has herpes, then tells him that, at a minimum, he should put on a condom. While I appreciate that it is impossible to determine how a person in the complainant's position should or would act, it seems unusual that her initial response would be focussed on protection, and not on expressing an unwillingness to engage in sex. Having said that, I appreciate that the defendant has the obligation to receive a "yes," and not the opposite, and that she did express a "no" subsequently.

• As outlined in Exhibit 6, the defendant's DNA was found on three locations examined on the complainant: external genitalia swab, vaginal swab, and semen on the underwear. Although alternate possibilities exist to explain how the defendant's DNA was found in those three specific locations, the complainant's description of the sexual activity is not one of them. Given that she maintained a condom was used at all times, and given that she told the nurse it remained intact, it is difficult to explain how the defendant's DNA was found in the locations it was.

• Similarly, the complainant was asked by the nurse, among other things, if there was vaginal penetration by the defendant's fingers. She indicated yes. Again, however, her description of sexual activity did not include digital penetration, or anything close to that.

[27] There were other inconsistencies or incongruities outlined by defence in submissions, including:

• alternate explanations the complainant gave for not leaving the defendant's apartment (frightened or to gain his trust to have property returned);

• characterizing the traumatic evening of victimization as a "wasted" night;

• complainant inconsistent as to whether just the defendant, or the defendant and another, were present when she was forced to smoke crack cocaine;

• complainant inconsistent when testifying that she did not think the defendant ever saw a debit card that she hid in her underwear, and a few minutes later after being shown her statement, changed her evidence to the defendant seeing the card and becoming upset that she tried to hide it from him.

Conclusion

[28] As indicated in Ewanchuk, the complainant's evidence that she did not consent is a matter of credibility to be weighed in light of all the evidence, including any ambiguous conduct. Here, while I conclude Ms. R.K. was likely truthful about the events of that evening, a reasonable doubt has arisen from the accumulated factors outlined above. In short, I am not satisfied the Crown has proven the absence of consent beyond a reasonable doubt. Similarly, because I find her account of the entire evening to have significant credibility and reliability concerns, I am not persuaded to the necessary criminal standard of proof regarding the other four counts, and there must be a finding of not guilty on all five counts.

[29] Although, I remain skeptical that I did not hear from the defendant, I must remind myself that the law prevents triers of fact from relying on that silence, in the face of the complainant's allegations, to bolster the Crown's case so that a reasonable doubt is extinguished: R. v. Noble.

[30] While I conclude a finding of not guilty must be made on the Robbery count since I have a reasonable doubt regarding the alleged violence, I have no doubt that the defendant absconded with the complainant's $60, her iPhone, and her iPod. The reason I come to this conclusion, when I had reasonable doubt regarding everything else, is that the complainant's likely truthful story was supported by the evidence of her boyfriend Mr. L.K.. While protective of his girlfriend's position, he was, in my view an honest and reliable historian of his involvement in this case. He phoned Ms. R.K. at 11:30 on the iPhone. The iPhone and his girlfriend were at the defendant's apartment, and the iPhone never returned to his apartment. The police, although they recovered the complainant's headphones upon a search of the defendant's apartment the next day, did not recover the iPhone or iPod. Since the defendant was present, with others, upon the search and arrest, the only rational conclusion I can reach, is that he converted the complainant's property to his own use, or was a party to that offence. Ms. R.K.'s contention that her property was stolen was also corroborated by the lining of her purse being ripped as she described, and Mr. L.K. confirmed.

[31] Accordingly, the defendant will be found guilty on the included offence of Theft Under $5000.

Released: May 11, 2015

Signed: "Justice Blouin"