WARNING
The court hearing this matter directs that the following notice be attached to the file:
Non-publication and non-broadcast orders in this proceeding have been issued under s.486.4(1) (Sexual Offences) of the Criminal Code.
Court Information
Ontario Court of Justice
Date: January 14, 2016
Court File No.: Newmarket 12-08601
Parties
Between:
Her Majesty the Queen
— AND —
F.B.P.
Counsel
Ms. Shambavi Kumaresan — counsel for the Crown
Mr. Aaron Harnett — counsel for the accused
Judgement
KENKEL J.:
Facts
[1] The complainant attended a woman's basketball tournament in Toronto. She travelled by car from another province with her brother and his girlfriend who was also a team mate. Her brother invited the accused to join the trip and help share the driving. The complainant testified that following a night of heavy drinking the accused had sexual intercourse with her after she had passed out. The accused admitted that they had intercourse but testified that she was the one who insisted on having sex and it was consensual.
[2] Consent and the capacity of the complainant to consent are the central issues at trial.
The Credibility and Reliability of the Witnesses
[3] All three witnesses were polite, generally responsive to questions and appeared to be otherwise of good character. The credibility of their evidence is best assessed in the context of all the evidence.
[4] Reliability is a concern. While the complainant came to the Toronto area to play in the tournament, the evenings were spent engaging in heavy drinking. On the night in question, after the team was out of the tournament final round they had what they called a "pre-drink" at the hotel where they shared and finished large bottles of rum. They then went to the Wet Bar in Toronto where the group shared bottles of vodka. They later returned to the hotel and continued drinking.
[5] The complainant conceded she's a heavy drinker. She "blacked out" on the night in question and that's happened to her before. She often remembers little of the events when reaches that state. The complainant was candid about her lack of memory on many points including having no memory of intercourse with the accused.
[6] The complainant's friend and team mate (brother's girlfriend) took part in the same drinking but to a lesser degree as she described. Still, her testimony showed that there were many gaps in her recollection. She stayed up until 6 a.m. on the night in question. Although she went inside the room where the accused was sleeping with the complainant a few times she didn't pay particular attention to them or note how the complainant was dressed.
[7] I approach the evidence of both Crown witnesses with concern about the reliability of their testimony given their extensive drinking. It's important in that context to note whether the direct evidence as a whole confirms or contradicts their testimony and to consider whether the circumstantial evidence is contrary to or supports their account.
[8] The accused was part of the drinking described but the evidence shows he was not as intoxicated as others on the night in question. He was the person who drove to the Wet Bar and after the complainant's brother became too intoxicated to drive the accused was chosen to drive back to the hotel. Unlike the other two witnesses, his memory was detailed and apparently unaffected by alcohol consumption. He was able to help the complainant get to her own bed without assistance from others. He suffered no ill effects from drinking in marked contrast to the complainant. The next day he enjoyed the rides at Canada's Wonderland while she vomited and stayed in the car. I accept that the accused was the most sober of the three witnesses and while the credibility of his evidence remains an issue, the reliability of his testimony does not suffer from the same concern regarding alcohol consumption.
The Balcony
[9] At the hotel there was a balcony attached to the party room which the group used for smoking. The accused testified that the complainant suggested that they go out and smoke on the balcony. People had been coming and going from the balcony throughout the evening. There were three men on the balcony when the accused and the complainant arrived. When those men left to go back inside, the accused decided to leave too. He testified that the complainant started hugging him, grabbing under his shorts and touching his penis saying "fuck me, fuck me". She insisted they have sex on the balcony. He told her that they couldn't as there were a lot of people coming and going from the balcony but he says she insisted, trying to pull his penis inside her. He "couldn't help himself". He said she "jumped on him" and they started to have sex but someone interrupted and just as quickly she jumped off and they pretended nothing happened.
[10] The defence submits that the accused's testimony regarding the balcony is credible as, "it only complicates the story and adds a somewhat bizarre element." The complainant made no reference to being with the accused on the balcony that evening so the defence submits that the accused would not have added that aspect unless it were true. The balcony incident though is not just a simple "bizarre" twist to the facts but rather an important part of the accused's narrative regarding consent that evening and his apprehension of consent even after he had to help the complainant to her bedroom.
[11] The complainant agreed in cross-examination that it was possible that she went on the balcony to smoke that evening but she didn't remember whether she did. The accused's evidence as to sex on the balcony was never put to her.
[12] Considering the accused's evidence on this point in the context of the rest of the evidence at trial I find I'm unable to accept his testimony on this point as credible for the following reasons:
The complainant, her friend and the accused all agreed that the complainant had not shown any interest in the accused prior to or during the trip even when partying or intoxicated. She'd shown no interest in him that evening even after he'd given her a rose at the Wet Bar. Nothing happened that could account for the dramatic change in attitude or the aggressive sexual behaviour he described. The accused concedes that she did not show interest in him during the party immediately after they were on the balcony.
The balcony was in use by the many people at the party. The complainant's team mates and friends were present and even if she were interested in sexual activity it's very unlikely she would pick a busy balcony to sexually attack the uninterested accused in the manner described when there was a bedroom close by.
It's not credible that the accused "couldn't help himself" and would engage in sex with someone he wasn't interested in on a public balcony he intended to leave.
A minor point - the second Crown witness, the complainant's friend did not notice the complainant leave the party with the accused as described although the whole of her evidences shows that she wasn't keeping track of them at all times in the evening.
In the Room
[13] Although the complainant has no recollection of having intercourse with the accused, he later told her they did and he gave that evidence at trial. The circumstantial evidence including DNA evidence supports his testimony on this point.
[14] The complainant's friend is a dental assistant in their home province. Her boyfriend is the complainant's brother and she joined the trip to Toronto on that basis. As discussed above she was part of the heavy drinking and partying on the night in question, although she drank less than the complainant, did not blackout and retains some memories of that evening.
[15] She did not notice the complainant paying attention to the accused during the party, although he was near her at times. The one exception was later in the evening when she saw the accused helping the complainant to her bed. The friend testified that the complainant "wasn't able to function any more", "she couldn't hold up her body anymore" and had to be helped into the bed. Prior to that she'd seen the complainant throw up. The complainant had tried to throw up in a recycling bin but the vomit hit the wall. Remarkably, the complainant continued drinking for a time after throwing up then "passed out" on a bed and had to be helped back to her bed. The complainant "didn't seem very awake" as the accused helped her to her bed in their room.
[16] The accused confirmed that he helped the complainant to her room. He agreed she was lying on a bed in one of the party rooms and he helped take her to her own room and bed. He testified that she just stood up and walked back to her room. He held her hands although the purpose of that isn't plain as she was able to rise and walk on her own.
[17] Once inside the room he said the complainant "grabbed me again". She said "fuck me". She grabbed him, held his head and eventually he agreed and pulled his shorts down and they had intercourse. She grabbed onto him helping him during the sex. After that he slept with her in the same bed.
[18] The complainant's friend agreed in cross-examination that she was sympathetic to the complainant and she did not appear to be a fully candid witness when asked about her boyfriend's use of marijuana or the argument they had at the Toronto bar. However, her evidence regarding the accused taking the complainant to her room is credible given that the central features are not in dispute and are consistent with the accused's evidence – that the complainant was lying on a bed in another room and the accused helped the complainant to her room. Her observations as to the complainant's physical and mental state at the time are credible in the context of all of the evidence as:
consistent with the heavy level of drinking the complainant described,
consistent with the fact that the complainant had thrown up in the manner described and then had continued drinking past that point
consistent with the fact that the complainant was no longer standing participating in the party but was lying on a bed in another room
consistent with the fact that the complainant had to be helped to her room and into her bed
consistent with the complainant's evidence of blackout and memory loss during that period
consistent with the fact that the complainant vomited at Canada's Wonderland the next day and went to the car sick while the accused and others enjoyed the park rides
consistent with the accused's question of the complainant days later, "…do you even remember what happened between us the other night" and consistent with the complainant's shocked response and her rush to go get a morning after pill.
[19] While I accept that the accused found the complainant on a bed in another room and helped bring her to her room, in the context of all of the evidence I'm unable to accept his evidence as to his observations of her physical and mental state at the time. If she was awake it's not plain why he would tell her to go to her own room. If she was sober enough to stand up on her own and walk on her own there's no apparent reason for him to have held her hands and on his account a good reason why he would not. His evidence as to the complainant's condition was inconsistent with the credible evidence of the complainant's friend on this point.
[20] With respect to the statements and actions leading to intercourse, I find I'm unable to accept the accused's evidence in that regard. In addition to the circumstances set out in paragraph 13 that are inconsistent with the complainant being the sexual aggressor described, the complainant's physical and mental state at the time is completely inconsistent with the statements and aggressive physical actions he attributes to her.
[21] If he was as uninterested in her as he said there was no reason for him to take it upon himself to bring her to her room. That's particularly the case if he'd just been the victim of unwanted aggressive sexual advances on the balcony as he described. His stated lack of interest in her is inconsistent with the fact that he'd bought her a rose at the bar earlier that evening and that he'd said he loved her while intoxicated on a prior occasion.
[22] The complainant drank to the point of intoxication so extreme she vomited on the wall at the party. She paused then somehow continued drinking to the point where she passed out or fell asleep on a bed in another room. The accused took her to her own room and bed. He had to help her as she couldn't stand or move on her own. The complainant has no memory of this portion of the evening due to the effects of her extreme drinking and she described her condition as "blacked out".
[23] There is no credible direct account of the circumstances at the time of intercourse with the accused. The fact of intercourse admitted, the sole issue in relation to the charge before the court is consent.
Consent
[24] Consent in this context means the voluntary agreement of the person to engage in the sexual activity in question. Criminal Code s.273.1(1) No consent is obtained where a person is incapable of consenting to the activity. s.273.1(2)(b)
[25] Intoxication does not automatically equate to incapacity. R. v. Cubillan 2015 ONSC 969 at para.31
[26] Memory loss due to intoxication is the absence of evidence, not direct evidence of a lack of consent during that period. R. v. JR, [2006] OJ No.2698 (SCJ) at paras.17-19. That's not to say evidence of blackout during the period in issue and subsequent memory loss is not relevant. Such circumstantial evidence considered with the other evidence in the case may be probative on the issue of capacity to consent.
[27] "Where an accused knows a complainant to be quite drunk, reasonable steps must be taken to ascertain whether the complainant's apparent participation represented actual consent." Consent cannot be assumed where an accused knows the other party is seriously intoxicated. R. v. Cubillan at para.29, R. v. TS [1999] OJ No.268 (Gen.Div.)
[28] The accused knew that the complainant was extremely intoxicated when he took her back to her bed. Assuming the circumstance most favourable to the accused – that the complainant was conscious and appeared to participate in the sexual activity – he had a duty to take reasonable steps to ensure that the apparent participation represented actual conscious consent.
[29] The evidence of extreme drinking on the part of the complainant and the significant effects that drinking had upon her physically and mentally shows that she lacked the capacity to consent at the time of intercourse with the accused. There's no evidence he took any steps to ascertain consent despite the signs of extreme intoxication she displayed. There's no credible evidence that the complainant was capable of consenting to sexual activity or that the accused could have held a reasonable belief in that regard.
[30] The defence notes that the complainant's brother was staying in the same room with her and the accused that weekend. I agree with the defence that the evidence at trial showed that he was protective of his sister and had a somewhat volatile temper. The defence submits that the fact that the accused slept in the same bed with the complainant afterwards surely must indicate that any sexual activity was consensual in those circumstances. That submission would have some force but for two things – First, the brother had an argument with his girlfriend and decided to stay and sleep in the car that night. He stayed there until morning when his girlfriend retrieved him from the car. This was the one time the accused was actually alone with the complainant for an extended period during that trip. Second, the fact that he slept in the bed with the complainant did not arouse suspicion the next morning as they were young people travelling in a group on a tight budget. The accused slept with the complainant's brother and his girlfriend in their bed the night before. The woman who had been sleeping with the complainant returned home prior to the Sunday evening in question so there was space in her bed that one night. It was likely given their arrangements that the accused would have slept there regardless of any sexual activity and given the lack of any romantic relationship between the two nobody thought it odd that he was there the next morning.
[31] The defence also points to the complainant's conduct in the days afterwards as circumstantial evidence of consent. The photographic exhibits were introduced to show that her reaction is not consistent with her testimony that she did not consent to sex with the accused.
[32] Her delay in reporting needn't be explained. Criminal Code s.275. The second day afterwards when the accused told her that he had sex with her she went to a drug store and obtained a morning after pill. Sex without use of birth control is arguably another circumstance that is inconsistent with awareness and consent at the time. It was suggested to the complainant that she didn't ask the accused about the details of their sex because she didn't want to know and was ashamed. It was further suggested that the photos of the group afterwards showed she was not traumatized or upset as she would have been if she had been sexually assaulted. She reasonably explained that she was still on the trip with this group and they were not in their home province. She didn't know what to do and she decided not to ruin the trip by confronting the accused at that time. She agreed that after returning home she declined a sex assault examination by a doctor but explained that the doctor assigned was a male and she didn't want him to conduct the intimate examination.
[33] Courts are well aware that reactions to any situation including sexual assault are individual and contextual. The court must avoid the stereotypes and myths of the past that suggested that true victims of this one offence would necessarily complain at the first opportunity, would raise a "hue and cry" after the assault and would be plainly emotional or hysterical in reaction afterwards. (See Madam Justice L'Heureux-Dubé's reasons in R. v. Seaboyer, [1991] SCJ No.62 at para. 141) The complainant's conduct after learning that the accused had sex with her while she was, "blacked out" was reasonably explained in context. There's nothing in that evidence that could reasonably support the accused's assertion that the sex was consensual. On the contrary, after the incident the complainant showed no interest in the accused consistent with her attitude towards him throughout.
[34] It was actually her ongoing indifference that led him to ask her two days later if she even knew that they had sex. Whatever he hoped would come of that night hadn't happened. The defence submits that his voluntary disclosure supports his assertion that the sex was consensual, but his statement to her confirmed his awareness that she had been extremely intoxicated the night they had sex and likely did not have a memory of it.
[35] I find that the Crown has proved beyond a reasonable doubt that the voluntary agreement to participate in sexual activity required under s.273.1(1) was not present in this case as the complainant was incapable of consenting s.273.1(2)(b).
Conclusion
[36] I can find no credible evidence that reasonably could leave a doubt in relation to the charge before the court. I find that the Crown has proved the charge of Sexual Assault s.271 beyond a reasonable doubt. There will be a finding of guilt.
Released: January 14, 2016
Justice Joseph F. Kenkel