WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 111(1) of the Youth Criminal Justice Act. This subsection of the Youth Criminal Justice Act, which is concerned with the consequence of failure to comply with an order made under subsection 110(1), read as follows:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code. This subsection and subsection 486.6 of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4, 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File No.: 2811-998-15-Y18629-00

Date: 2017-10-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

N.H.

Before: Justice M.S. Block

Heard on: March 27, 28, 29, 30, June 19 & 20, 2017

Ruling released on: October 5, 2017

Counsel:

M. Allan for the Crown

C. O'Connor for the Young Person N.H.

BLOCK J.:

Overview

[1] The defendant had a Halloween party at his absent mother's home on the night of October 31-November 1, 2015. The house was filled with numerous other seventeen year-olds from the defendant's high school, many of them were intoxicated. He is charged with the sexual assault of the complainant at the party. He states that the sexual contact was consensual.

[2] B.R. testified for the Crown. He was a very close friend of the defendant. He was also a good friend of the complainant, and a few months previous had a brief romantic involvement with her. He attended the party late equipped with two bottles of Irish whiskey. He told the Court that the defendant made this confession to him at the party.

"He told me that he had fingered [the complainant], that she had said no, because she didn't want it to happen, because he had a girlfriend at the time, and that she was too drunk, but he did it anyway".

[3] Initially, Mr. B.R. testified that when he heard this confession he hadn't had too much to drink, "maybe two drinks tops". Under cross-examination he agreed he was intoxicated at the time of the defendant's revelation. He agreed with counsel that he could not recall what was said verbatim.

[4] Mr. B.R. was annoyed by the alleged confession. Not because of the revelation of the sexual assault by his very close friend upon his good friend, he testified, but because he was already sick of managing episodes of teen-aged drama that had played out at the party. He impatiently dismissed the defendant.

[5] Mr. B.R. denied having a romantic interest in the complainant at the time of the party. He denied fabricating the defendant's confession out of jealous suspicion that the sexual contact was consensual. He did agree that the defendant apologized to him at that time because of his concern that Mr. B.R. maintained an interest in the complainant.

[6] Later that evening and after the defendant's alleged confession, B.R. came across the complainant lying down in a second floor bedroom, groggy and sleepy. He was assisting M.1, a distraught friend. Although, on his evidence, he was already aware that the complainant had been sexually assaulted, he told her: "get the fuck up, get out, M.1 needs this room more than you do." If true, this command demonstrated an insensitive indifference to the plight of the complainant.

[7] Later that night Mr. B.R. himself "made out" with the complainant, notwithstanding his evidence that the defendant had already confessed to him. This was an act of shocking callousness if he believed the complainant to have been sexually assaulted.

[8] The episode described above contradicts Mr. B.R.'s insistence that he had no romantic interest in the complainant at that time.

[9] There is ample evidence that Mr. B.R. had a romantic or sexual interest in the complainant at that time. Under cross-examination he was reminded of texts exchanged with L.C. the next day regarding the sexual contact in question. Mr. L.C., who had also been at the house party, asked Mr. B.R. whether he was alright. In reference to the complainant Mr. B.R. replied, "I haven't killed her yet but we're talking". B.R. testified that he responded this way because he was angry that the complainant had put herself in a vulnerable position. This explanation is unworthy of belief.

[10] The entirety of the text exchange between the two young men on November 1, 2015, demonstrates Mr. B.R.'s concern that the complainant's sexual contact with the defendant at the party was consensual and also confirms that he raised that issue with the complainant.

[11] Evidence of Mr. B.R.'s continued and contemporaneous romantic interest in the complainant may also be found in the multiple text exchanges between the two during that period. In these texts Mr. B.R. repeatedly used sexually provocative and flirtatious language with the complainant.

[12] It is clear that Mr. B.R. was not candid with the court when he disclaimed any romantic interest in the complainant at the time of the incident.

[13] In the morning of November 1, 2015 Mr. B.R. drove the complainant home from the party. Mr. B.R. spoke to her regarding the sexual contact with the defendant. At that time she told Mr. B.R. that she did not recall it. Only after this conversation did Mr. B.R. conclude that the defendant had admitted the commission of a sexual assault in his earlier remarks at the party.

[14] The following exchange during cross-examination illuminates the process by which this witness ultimately concluded that the defendant had confessed:

Q. . . . . You're telling us this story that my client said he had some non-consensual business with [the complainant] that night. Did that not upset you?

A. . . . . Well, I – honestly, I didn't put it all together until everything – when I realized what was really – what was said and then everything – all the details that went over it. Because in my head that night, I said, well, you know, maybe it's nothing. Maybe I don't have to deal with this. Maybe I can just let it go.

Q. . . . So you just thought it maybe it was nothing, right?

A. . . . Yeah. I didn't pay a whole lot of mind to it because those words didn't come to my mind, you know. Sexual assault didn't jump to the forward of my mind. . He is my friend. He was one of my best friends. I – it's not one of those things that I wanted to think about him. But then I talked to [the complainant] in the morning and everything kind of put it together and made sense.

[15] In examination-in-chief, Mr. B.R. testified that, although they had not been in been regular contact for some time, he reached out to the complainant a few weeks before trial to see if there was some way of avoiding giving evidence. Those messages contained multiple indications that Mr. B.R. remained a partisan witness.

[16] During the cross-examination of Mr. B.R. it became clear that intense discussion about the incident continued amongst the eventual witnesses, other partygoers and the many other interested persons for some time. The immediate post incident, pre-charge period contained texted discussions of some length between Mr. B.R. and the complainant. These conversations indicated that, whatever doubts he had entertained after the party, within one day Mr. B.R. was firmly in the complainant's camp.

[17] I can have no confidence that the defendant admitted a sexual assault to this witness.

Z.K.'s Evidence

[18] Z.K. testified for the Crown. Like all of the other witnesses, she was a student at […] High School. She drove to the party with the complainant and another girl. She did not consume alcohol that evening as she was a designated driver. She struck me as a fair and balanced witness who did a good job of distinguishing between her own observations and those related to her by others.

[19] In examination-in-chief Ms. Z.K. testified that after she arrived at the party with the complainant they spent some time kissing downstairs. Later, they were joined by another young woman named L.. The three then went to an upstairs bedroom where the complainant and Ms. Z.K. resumed kissing. L., apparently in response to the kissing, went downstairs. At some point, a long, bitter and obscene tirade was directed at the complainant by two classmates named W. and M.2. Ms. Z.K. went downstairs about 11:00 p.m. to escape the hostilities. As the atmosphere at the party had changed for the worse, she decided to go home.

[20] Ms. Z.K. went upstairs a short time later to tell the complainant that she was leaving. She found that the complainant had thrown up. She assisted the complainant in cleaning herself up and replacing her soiled shirt with a bathrobe. Ms. Z.K. then put her to bed in an upstairs bedroom. The complainant was awake when Ms. Z.K. went downstairs a few minutes later. She made sense, she was alert and wasn't slurring her words. Ms. Z.K. heard others say that the complainant was drunk but her own observations were that the complainant was not intoxicated. In fact, Ms. Z.K. had spent most of the time she was at the party with the complainant. She never saw the complainant in a drunken state. She never saw the complainant asleep.

[21] When she left the complainant in the bedroom she passed the defendant going upstairs. She told him that the complainant could use a glass of water. She saw him go into the bedroom occupied by the complainant. There was a two minute interval between Ms. Z.K.'s departure from the bedroom and the defendant's arrival. On the whole of the evidence, it is clear that the sexual contact at issue then took place.

[22] Ms. Z.K. confirmed that she had multiple discussions with the complainant and others about the alleged sexual assault after the night of the party and in the days that followed. Unlike most of the other witnesses, it was clear that her recollection of these events was untainted by these discussions.

Complainant's Evidence

[23] The complainant adopted her video-statement to the police in her examination-in-chief.

[24] In her video-statement the complainant said that she drank a large amount of alcohol that evening. She recalled going to sleep while intoxicated. She said she stayed asleep for a long time and then woke up in a foggy state in an unfamiliar bed in a room she didn't recognize. As she became "herself again" and largely sober she realized what was happening to her. The defendant had his hands under her tights and was "fingering" her. She told him "no" several times but he persisted until she reminded him that he had a girlfriend. He then left the bedroom without saying anything.

[25] After the incident with the defendant, the complainant told the court that she ultimately left the bedroom and was assisted to the couch downstairs by Mr. L.C.. She told the court she invited B.R. to lay down beside her and they ended up kissing.

[26] She told the court that she clearly remembered the sexual contact with the defendant that night without assistance from other persons. The morning after the party, she told B.R. and others that she did not recall the incident with the defendant. She testified that she told this falsehood because she "wanted this situation to go away."

[27] If it were the only difficulty with her evidence, I would not be particularly troubled by the complainant's testimony that she was not initially candid about her memory of the alleged sexual assault. I can well appreciate why a young woman in a volatile and intense high school social milieu might well want to avoid becoming the focal point of gossip, heated contention and prurient interest. That unfortunate result is precisely what did happen to the complainant following the house party.

[28] The complainant came forward to the police after four or five days of controversy in her high school community. She had hoped that the whole matter would be forgotten. She hated the notoriety that the incident imposed on her. She told the court that she wanted the defendant to acknowledge that her version of the facts was correct. She felt demonized by the narrative circulated by some of her fellow-students and had been told that the defendant's mother was considering slander proceedings. None of this undermines her complaint.

[29] However, there are features of the complainant's evidence that cause great concern regarding its reliability including: the accuracy of her memory of the evening, the large gaps in her memory of the events, the influence of other persons in restoring her memory by recounting their narrative of the events and the effect of the high school ferment around these events in the days following the house party.

[30] The complainant's memory of the events leading up to the alleged sexual assault is largely incomplete and differs in important respects from that of other witnesses. This is particularly true with respect to the evidence of Z.K..

[31] The complainant told the Court that she had no memory of kissing Z.K. at the party the next morning but did recollect kissing her downstairs on the couch after Z.K. had mentioned it to her later. She did not recall kissing Z.K. in an upstairs bathroom, throwing up, or being assisted into a bathrobe. These events were credibly recounted with some detail in the evidence of Ms. Z.K..

[32] The complainant did not recall with whom she was upstairs before she went to bed. She had little memory of what transpired upstairs after the alleged assault. She recalled going back to sleep in the same bed after the assault. She did not recall the toxic argument with W. and M.2. She did not recall B.R. brusquely ordering her out of the bedroom.

[33] The complainant testified to having no recall of some events until her memory was restored by discussion with others persons, particularly B.R.. She did not recall how she got downstairs after she went back to sleep following the alleged assault until she was told by B.R. that L.C. took her downstairs. She did not recall that L.C. assisted her in getting into the bathrobe until Mr B.R. told her.

[34] My concern regarding the contamination of the complainant's evidence by the suggestions of others was reinforced by the testimony of the last crown witness, N.K.. Mr. N.K. told the Court that, on the Tuesday following the incident, the complainant was telling "everyone" that she remembered everything about the alleged assault. At the same time, according to Mr. N.K., she told him that she would have remembered nothing if Mr. B.R. hadn't told her.

[35] In my view there can be no doubt that the extraordinary amount of discussion about the incident that took place between the complainant and other witnesses affected the reliability of her evidence.

[36] The complainant gave multiple contradictory answers concerning whether she discussed the sexual incident with Mr. B.R. the morning after the party.

[37] As counsel for the defendant closed his cross-examination by putting to the complainant his client's version of events, a remarkable exchange took place. The complainant was asked multiple questions regarding the events in which she was involved over the several hours leading up to the genital contact at the centre of this case. In response to each question the complainant stated that she had no recall.

[38] The complainant explained her complete lack of memory of the events leading up to the sexual encounter in question by claiming that she had been asleep for several hours. That explanation is completely contradicted by the clear, detailed and consistent evidence of the sober, and reliable, Z.K.. She testified that an apparently sober complainant entered the bedroom approximately two minutes before the defendant brought her glass of water.

[39] Because of the multiple difficulties with the complainant's evidence, I have no confidence in her account of the alleged crime.

N.K.'s Evidence

[40] N.K. was the last Crown witness. He was a fellow student of the principal actors in the incident. He was closer to the complainant and Mr. B.R. than he was to the defendant at the time of the incident. He did not attend the party. After receiving the complainant's approval he had a conversation with the defendant several days after the party. He felt that it was his job to "get things straight" regarding the incident.

[41] Mr. N.K. confronted the defendant in gym class. He alleged that the defendant admitted going upstairs to give the complainant some water and found her lying in bed with her shirt off. They started kissing. She was mumbling something but the defendant wasn't listening. He started listening to her once he started to finger her and realized she was saying "no". He then stopped. On Mr. N.K.'s account the defendant admitted that the complainant was "really drunk" and was passive throughout the encounter. In this account the defendant was particularly upset about his betrayal of his girlfriend. According to this witness, the defendant tearfully asked him to apologize to the complainant on his behalf.

[42] I had a number of concerns regarding Mr. N.K.'s evidence. He had already spoken extensively to both the complainant and Mr. B.R. about the incident for several days before speaking with the defendant. It is clear that this witness had taken a highly partisan position well before confronting the defendant.

[43] The content of the admissions reported by Mr. N.K. is substantially different that the account of the complainant or the alleged admission to Mr. B.R.. In particular the alleged admission to Mr. N.K. is that the defendant had sexual contact with the complainant, that he knew she was drunk and that he ignored her mumbling and was indifferent to her consent. He desisted when the complainant vocalized "no". In the admission described by Mr. B.R. the defendant continued to "finger" the complainant after she repeatedly said "no' until she spoke of his girlfriend.

[44] The witness took no notes of the alleged admission before recounting them to the police several days later.

[45] For the above reasons I cannot rely on the evidence of Mr. N.K..

L.C.'s Evidence

[46] L.C. was called by the defence. I will assess his evidence before turning to the evidence of the defendant. Mr. L.C. was a classmate of the principal actors in this matter. He described himself as best friends with both the defendant and B.R. at that time. He also attended the party at the defendant's home. At some point that evening the defendant confessed to him that he had messed up by cheating on his girlfriend with the complainant.

[47] After this disclosure Mr L.C. attended the second floor bedroom to wake the complainant. Apparently, M.1 had "called" the bed that the complainant was occupying. When he woke the complainant she went downstairs without assistance. She then joined Mr. B.R. on the couch. Mr. L.C. made three observations: the complainant arose easily, she did not appear drunk and, after she came downstairs, she appeared happy and smiling. I accept this evidence because it is corroborated by other accounts that I regard as credible.

[48] There is ample reason for caution regarding the reliability of this witness. Mr. L.C. participated in the frenzied discussion of the alleged sexual assault in the days following the party. As we have seen with other witnesses in this proceeding, there are indications that contamination of his evidence was a result.

[49] In examination in chief, when asked whether the complainant said anything when asked to leave the bed, Mr. L.C. responded "she said, come to bed". If anticipated, this evidence should have been the subject of a section 276 application. In any case, this was clearly inadmissible evidence, an invitation to conclude that the complainant was promiscuous and therefore more likely to have willingly participated in sexual activity with the defendant. It is significant that Mr. L.C.'s statement to the police didn't contain this information.

Defendant's Evidence

[50] The defendant testified. In the autumn of 2015 Mr. B.R. had confided to him his love for the complainant. Mr. B.R. was one of his best friends. They had known each other since grade three.

[51] During the party the defendant was aware that the complainant was in his mother's bedroom and made his way upstairs because he was concerned that his mother would be annoyed if she found anyone there. On his way upstairs he passed Z.K. who told him that the complainant might need water. The defendant obtained the water in a fridge located in his mother's bedroom and then asked the complainant to leave the room as his mother would return soon. The complainant giggled and agreed to leave the room.

[52] According to the defendant the complainant got up and left the room without assistance. She was not intoxicated. He walked her to the spare room across the hall. The complainant was flirtatious. She asked the defendant to join her on the bed several times. As he put it, the defendant became "flirtatious" as well. He testified that he lay down behind the complainant. She had her back toward him. She started to "grind" against his pelvic region. He moved against her. After a short time he put his hands down the back of her pants.

[53] He then put his hands down the front of her pants and then inserted his finger in her vagina. The defendant believed that the sexual contact was consensual. The complainant didn't vocalize but did giggle.

[54] The interlude ended when the defendant's mother came home, walked into her bedroom, saw the complainant's handcuffs, police jacket and hat, and began screaming. By permitting access to his mother's bedroom, the defendant had broken a household rule.

[55] The defendant had a short conversation with his mother and then left her room. He related the conversation to the complainant and commented to the complainant about his good fortune that she had left his mother's bedroom prior to his mother's return. The complainant laughed and agreed with him and then the two returned to the bed in the spare room.

[56] The sexual contact resumed where it left off. After about twenty seconds, and as the defendant was fondling her clitoris, the complainant told the defendant that, because he had a girlfriend, he could not behave this way. He stopped immediately. She remarked that she didn't want to cause any issues between the defendant and his girlfriend. According to the defendant, the duration of the encounter was approximately six to seven minutes.

[57] The two chatted for a short time. The defendant then left the room because he felt he had been upstairs too long and needed to supervise the party. They said goodbye.

[58] The defendant walked downstairs. He saw Mr. B.R. in the kitchen. Mr. B.R. was drunk. The defendant felt compelled to tell Mr. B.R. about the sexual encounter with the complainant. He did so because he felt guilty about cheating on his girlfriend. He also was aware that Mr. B.R. would be angry because of his interest in the complainant.

[59] The defendant told Mr. B.R. that he had to tell him something and that he wouldn't be happy about it. In his words he told Mr. B.R. that "I had just cheated on my girlfriend, I had made out and fingered [the complainant]. Mr. B.R. became angry, more at the complainant than with the defendant.

[60] The defendant denied telling Mr. B.R. that the complainant didn't want the encounter to happen and that she had said "no" several times before he stopped.

[61] The defendant testified that Mr. N.K. was more acquaintance than friend. Mr. N.K. approached him outside of gym class less than a week after the incident. According to the defendant Mr. N.K. started the discussion by telling him that what happened was unacceptable, that "no" meant "no" and that the defendant had a girlfriend.

[62] The defendant told the court that he told Mr. N.K. that the complainant "came on" to him and she had said that she liked the sexual contact. The defendant denied ever telling Mr. N.K. that the complainant was drunk and unresponsive or that he had ignored her while she mumbled incoherently. He denied telling Mr N.K. that he had desisted only after the complainant articulated "no".

[63] Under cross-examination the defendant agreed that he lied to Mr. N.K. when he told him that the complainant had said she liked it. The defendant explained that he lied because he was a little intimidated by Mr N.K.. He suggested this was because Mr N.K. approached him in very emotional manner and had already taken a hardened position on the controversy. The defendant also implied that he felt physically intimidated by Mr N.K.. This latter suggestion was not explored further in cross-examination.

[64] The complainant stayed at the house until the next morning, at which time Mr B.R. drove her home. According to the defendant she behaved normally until her departure.

[65] Under cross-examination the defendant agreed that neither he nor the complainant had ever expressed a sexual interest in each other prior to the party. He agreed that he did not ask the complainant whether the sexual contact was something she wanted. He testified that he believed that she consented to the activity because of her actions.

[66] I find that I cannot reject the evidence of the defendant. His story is that the complainant invited him to bed several times and then started to "grind" against his pelvic area with her back. Although there was no evidence that she articulated her consent, her invitation to the defendant to join her in bed and her subsequent actions are evidence of unequivocal consent. I do not disbelieve him.

Released: October 5, 2017

Signed: "Justice M. Block"