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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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

Ontario Court of Justice

Date: November 17, 2015

Court File No.: City of Stratford 3211-998-15-155-00

Between:

Her Majesty the Queen

— AND —

David Scott Edward West

Before: Justice K.L. McKerlie

Heard on: October 8 and 21, 2015

Reasons for Judgment released on: November 17, 2015

Counsel:

• Ms. E. Wilson — counsel for the Crown
• Mr. D. Brown — counsel for the defendant David West

Judgment

McKerlie J.:

Charges

[1] As a result of events that took place at a house party, the accused, David Scott Edward West, is charged with the January 24th, 2015 offence of sexually assaulting SM, contrary to Section 271 of the Criminal Code of Canada.

Background

[2] The house party was hosted by the accused, David West and his roommate, S.T.. The other attendees were their friends: CE and his girlfriend, SM, J.G., C.W. and W.W.. With the exception of Mr. W.W., everyone planned to spend the night at the apartment.

[3] The Crown's case consisted of the testimony of the complainant, SM, as well as the testimony of C.W. and W.W.. The accused, David West, was the sole defence witness.

[4] The trial evidence established that the group of friends spent the evening socializing, listening to music, playing games and drinking alcohol. Toward the end of the evening, SM and CE became involved in a loud argument. There were various accounts as to the extent of the argument and its aftermath. By all accounts, SM was visibly upset and Ms. C.W. came to her assistance and consoled her.

[5] The two women went into Mr. S.T.'s bedroom and were chatting in bed. At that point, SM's boyfriend, CE, was asleep or passed out in the living room, as were Mr. S.T. and Mr. J.G.. Mr. West and Mr. W.W. were still up drinking and playing darts.

[6] A short time later, Mr. West and Mr. W.W. went into the bedroom occupied by SM and Ms. C.W.. As Mr. W.W. put it, they went into the bedroom to "cheer up" SM, who was upset after the argument with her boyfriend.

[7] Mr. W.W. sat or stood by the bed. Mr. West flopped back on the bed between the two women. SM testified that all three of them were on top of the bed covers. Ms. C.W. and Mr. West each recalled that Mr. West was on top of the covers, but the two women were under the covers.

[8] The four of them were talking and laughing in the bedroom. At some point, Mr. W.W. left the room and eventually went back to his own residence. SM testified that Ms. C.W., Mr. West and Mr. W.W. were still in the room when she fell asleep at approximately 3:30 a.m. Mr. W.W. testified that the three occupants of the bed were still chatting when he left the room. Ms. C.W. testified that she remembered saying goodbye to Mr. W.W. and heard Mr. West start to snore before she fell asleep.

[9] On all accounts, Mr. West remained in the middle of the queen size bed between Mr. C.W. and SM. SM was beside the wall and Ms. C.W. was on the open side of the bed.

Allegations

[10] I now turn to the sexual assault allegations.

[11] SM testified that she woke up to someone rubbing the side of her body. She stated, "I could feel him on my back. I could feel that he was hard". Her first thought was that it was her boyfriend, CE. She turned over and saw that the person touching her was Mr. West. He then started touching her breasts. As soon as she saw that it was Mr. West, she told him to stop. He did. They turned over and went back to sleep. She stated, "I just let it go". She estimated that the incident lasted approximately ten seconds.

[12] SM testified that sometime later she woke up to heavy breathing in her ear. Mr. West was behind her and had his left hand down her pants. His fingers were touching her vagina under her clothing. His right arm was under the pillow and he was grasping her shoulder.

[13] As soon as she woke up, SM told Mr. West to stop and tried to pull his hand out of her pants. She testified that when she was telling him to stop, Mr. West said, "It's okay, it's okay. You are so fucking sexy. It's okay".

[14] In a raised voice, SM repeatedly told him to stop. She testified that once she managed to get his hand out of her pants and to get free, she went to the washroom to collect herself. SM stated that she could not believe what had happened, but did not intend to tell anyone because, in her words, she did not want to stir anything up.

[15] SM then went to the other bedroom, which was empty, and fell back to sleep. She acknowledged that it was Mr. West's bedroom, but explained that there was nowhere else for her to sleep. People were already sleeping on the couch. No one else was awake.

[16] In the morning, her boyfriend, CE, woke her up to tell her it was time to leave. On the way back to their home, CE asked her what was wrong. She told him what had happened and the police were called.

[17] SM testified that the first time she woke up to find Mr. West touching her, she was uncomfortable but "just kind of blew it off because I didn't want to make a big deal about it". She testified that when she woke up the second time and discovered Mr. West touching her vagina, she felt uncomfortable and violated.

[18] With respect to alcohol consumption, SM estimated that she consumed approximately three beers over the course of the evening. The suggestion was made in cross-examination that she was down-playing her consumption of alcohol. SM admitted that she could have consumed a few more beers. She remembered three, but was not counting and agreed she could have consumed five beers.

[19] SM did not recall consuming any shots of alcohol, but ultimately agreed during cross-examination that she might have had one shot with the group. She remembered lots of shots being made and passed around. She testified she possibly might have consumed one shot, but did not believe she consumed more than one shot.

[20] Under cross-examination, SM confirmed that when interviewed by the police she said, "I know the alcohol thing must sound really bad" and agreed that she was trying to create the impression that she had little to drink. SM admitted in cross-examination that she was feeling the effects of alcohol on the night in question. As she put it, "I was buzzing". She did not recall anyone being extremely intoxicated.

[21] SM testified that the reference to alcohol in her police statement reflected her concern that everyone had a lot to drink that night. SM confirmed that she told the police she had consumed "a few beers" and was aware that alcohol consumption could bring into question the reliability of her statement. When it was put to her that five beers plus a shot is not a few, SM responded, "It honestly depends on how many you consider a few". She ultimately agreed that a police officer would not think a few beers meant five beers.

[22] Under cross-examination, SM confirmed that when she described the fight with her boyfriend in her police statement, she used the phrase "a little bit of a fight". She remembered CE pushing her and the two of them fighting and screaming in the bathroom. She did not recall calling out for help. She stated, "I was angry, I just don't remember". She did remember Ms. C.W. coming into the bathroom and the two of them then going into the bedroom.

[23] As to why she minimized the fight with her boyfriend in her statement to the police, SM explained that she did not see it as relevant at the time and was very upset at the time of giving her statement. She admitted that by the end of the night, she and CE were not on speaking terms and she was feeling the effects of alcohol.

[24] SM confirmed that after the fight with her boyfriend, Ms. C.W. was trying to console her, Mr. W.W. was trying to cheer her up and Mr. West was making jokes and trying to lighten the mood. She agreed that Mr. West did not touch her before she fell asleep. As to the first incident, SM confirmed that she told the police that Mr. West kissed the back of her shoulder, but forgot that detail during her examination-in-chief.

[25] Under cross-examination, SM confirmed that she knew Ms. C.W. was in the bed, a foot or so away. It was put to SM that she could have called out for help. She replied, "I was saying stop pretty loudly". She confirmed that her voice was raised and she said stop more than once. She also confirmed that she was struggling to remove Mr. West's hand from her pants and the second incident lasted about twenty-five seconds.

[26] When asked why she did not call out for help, SM replied, "I didn't think of it at that moment". She added that she did not know how Ms. C.W. did not wake up. SM confirmed that not only was she struggling, she was also calling out, "stop" in a raised voice.

[27] SM denied defence counsel's suggestion that she did not like CE's friends. She confirmed that she initially decided not to tell anyone about the incidents. She did not want to wake the others up and wanted to pretend that nothing happened. She indicated she was reluctant to contact the police, but CE recommended they report the events to the police and she agreed that he could place the call.

[28] C.W. testified that she recalled lying in the bed with both Mr. West and SM and the three of them falling asleep. She did not know who fell asleep first, but recalled Mr. West starting to snore. She did not wake up until 8:00 a.m. and woke up alone in the bed. She did not hear anything during the night and was shocked when she learned of the allegations of sexual assault.

[29] Ms. C.W. testified that she was with Mr. West when they heard of the sexual assault allegations and she described his reaction as flabbergasted and bewildered.

[30] The accused, David West, testified that he dozed off after Mr. W.W. left the room. He had not planned to sleep in Mr. S.T.'s bedroom that night, but closed his eyes and the next thing he knew it was morning. He woke up in the same position in the middle of the bed. He was on top of the covers. Ms. C.W. was still beside him, but SM was no longer in the bedroom.

[31] Mr. West testified that he got up, went to the washroom and then went to his own bedroom, which was empty, and went back to sleep in his own bed. In the morning, the group went out together for breakfast, except for CE and SM, who had not planned to stay for breakfast. CE and SM had indicated they would be going home to attend to their dogs in the morning and would not be staying. Accordingly, when Mr. West woke up that morning, he was not surprised to find they had already left.

[32] Under cross-examination, Mr. West denied that he passed out on the bed. He admitted that he dozed off and had not planned to sleep between the two women in Mr. S.T.'s bedroom. He admitted that he was still feeling the effects of alcohol the next morning.

[33] Mr. West denied the suggestion put to him by the Crown that he woke up during the night and decided to "test the waters" with SM. He unequivocally denied kissing or touching SM. Mr. West testified that when he woke up, SM was no longer in the bed.

Analysis

[34] The starting point in the analysis of the trial evidence is the presumption of innocence. The accused, David West, is presumed to be innocent and is not required to prove or disprove anything. The onus of proof is on the Crown and never shifts. The standard of proof is high – proof beyond a reasonable doubt. I am mindful that the principle of reasonable doubt applies to issues of credibility and reliability, as well as to issues of fact.

[35] The credibility and reliability of the witnesses is in issue. The ultimate issue on this trial, however, is not "which version of the matter is true" or "whether to believe the complainant or the accused". The ultimate issue is whether the Crown has discharged its onus of proving beyond a reasonable doubt all the essential elements of the offence of sexual assault.

[36] The test for determining proof beyond a reasonable doubt where credibility is in issue was set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742:

1. If I believe the evidence of the accused, I must acquit;

2. If I do not believe the evidence of the accused, but I am left in reasonable doubt by it, I must acquit; and

3. Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[37] In assessing the credibility and reliability of the witnesses, I take into account their ability to make observations, their level of intoxication, their capacity to remember and relate the events in question, issues of bias and interest, the completeness, consistency and reasonableness of their testimony and the manner in which it was given in both examination-in-chief and cross-examination.

[38] I am mindful that the testimony of each witness must be carefully scrutinized both on its own merits and in the context of the totality of the trial evidence. I am alert to the danger of accepting the evidence of the complainant on the basis of demeanour and thus subtly, and improperly, shifting the onus to the accused to give some explanation as to why the complainant would lie. The credibility and reliability of the complainant's evidence must be tested in the context of all of the other evidence, particularly where the Crown's case depends solely on the unsupported evidence of the complainant and where the principle issue is that witness' credibility and reliability: R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.)

[39] In assessing the totality of the trial evidence, I am guided as well by the direction given by the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No. 3177 at paragraph 5:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left in a reasonable doubt concerning the guilt of the accused.

[40] This is a difficult case in which to assess credibility. The testimony of the accused, David West, amounts to a blanket denial of the allegations made by the complainant. The denial is unequivocal. There is little context against which to assess the credibility or reliability of Mr. West's straightforward denial. In all the circumstances, however, the lack of context and detail is consistent with his version of events. It is also consistent with the testimony of C.W., who was in the same bed at the time of the alleged incidents.

[41] The complainant, SM, presented as a sincere witness, who testified in an understated manner. Cross-examination established that she minimized her consumption of alcohol and minimized the extent of the argument with her boyfriend. Also, she initially did not recall that Mr. West was kissing the back of her shoulder when she woke up the first time, a detail which she had included in her statement to the police.

[42] There were a number of relatively minor inconsistencies between the testimony of SM and the testimony of Ms. C.W. and Mr. W.W., including whether the two women were under the covers, Mr. W.W.'s position in the bedroom and who was awake when he left.

[43] The defence advanced the theory that SM fabricated the allegations in order to drive a wedge between her boyfriend and his group of friends. Defence counsel also submitted that it would make no sense for Mr. West to initiate sexual activities or "test the waters" in these particular circumstances, including the fact that Ms. C.W. was no more than a foot away in the same bed. Defence counsel speculated that SM initially fabricated the allegations for her boyfriend's benefit and then the situation snowballed out of control when he insisted that the police should be called.

[44] In response, the Crown quite appropriately emphasized that the submissions by defence counsel were based not only on speculation, but also on stereotypes about how a victim of sexual assault might be expected to react.

[45] I accept the Crown's submission that the fact that SM had been in a fight with her boyfriend certainly does not make her less credible, nor does it support the defence theory that she was somehow looking for attention and wanted to cause trouble between her boyfriend and his friends. Those submissions by defence counsel were merely speculation and not based on the trial evidence.

[46] I also reject defence counsel's submission that this was a fabrication for her boyfriend's benefit, which then snowballed out of control. The trial evidence does not support that theory of events. SM's initial reaction was to not tell anyone. As she put it, she did not want to stir anything up. Later in the morning, after she had an opportunity to think about the events and had decided to disclose the incident to CE, she made a specific report of sexual assault to the police.

[47] I emphasize that Mr. West is presumed to be innocent and is not required to prove or disprove anything, including a motive to fabricate. The onus of proof is on the Crown and never shifts. The standard of proof is high – proof beyond a reasonable doubt. Mr. West is entitled to the benefit of any reasonable doubt on any issue.

[48] Having assessed the entirety of the trial evidence, I am left in a reasonable doubt on the basis of a combination of the testimony of the accused, the testimony of Ms. C.W. and the frailties in the testimony of SM, which were highlighted during her cross-examination.

[49] The finding of reasonable doubt should not be confused with the defence suggestion that the complainant fabricated the allegations of sexual assault. I make no such finding on the evidence. Rather, the finding of reasonable doubt reflects the heavy onus of proof on the Crown and the presumption of innocence.

[50] Accordingly, I find the accused, David West, not guilty of the January 24th, 2015 offence of sexual assault.

Released: November 17, 2015

Signed: Justice K.L. McKerlie