WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-01-08

Court File No.: Espanola 16-Y030

Between:

Her Majesty the Queen

— and —

M.M., a young person

Before: Justice V. Christie

Heard on: November 6 and 20, 2017

Reasons for Judgment released on: January 8, 2018

Counsel:

• Stephanie Baker, counsel for the Crown
• Brad Allison, counsel for the defendant M.M.

Decision

CHRISTIE J.:

Charge

[1] M.M. is before the youth court charged with one count of sexual assault. Specifically, he is charged that on or about the 30th day of January, 2016 at the First Nation Territory of S.A. in the said region did commit a sexual assault on C.T. contrary to section 271 of the Criminal Code of Canada.

Facts

C.T.

[2] The complainant, C.T., testified as the first Crown witness. At the time of her testimony, she was 16 years old. On consent, she testified by way of CCTV and in the presence of her mother as a support person.

[3] She indicated that she was born and raised in S.A. First Nation, where she still lives with her parents. She has two older brothers and one older sister.

[4] C.T. indicated that she knew M.M. from around the reservation. She was unsure as to precisely when she met him, but she believed she had known him for about 3 years.

[5] On January 30, 2016, C.T. was hanging out with two of her friends, M and S. C.T. and M are of similar age and are cousins. At that time, C.T. was 15 years of age. S was one year older. They all attended the same school.

[6] On that day, January 30, 2016, they all met at C.T.'s residence at about 6:30 pm. They left the house at about 9:00 p.m. They were out walking around and decided to go to a party at R's house. C.T. was unsure of R's last name, however, she knew him from school. R's residence was about 2 blocks from C.T.'s residence. C.T.'s parents did not know that she was going to this party, as she just said that she was going out with her friends. C.T. testified that she was wearing blue jeans, shoes, a long-sleeve knitted shirt, and a jacket. In cross-examination, C.T. admitted that she and her friends were not invited to this party. They knew there was a party because they heard music and saw people walking toward the residence. She said her friends decided to go and she just followed.

[7] The three of them (C.T., M and S) arrived at the party at about 9:15 pm. They knocked on the door and someone hollered for them to come in. Once inside, C.T. sat down on the couch. She estimated that there were 20 people at the party. Initially, she indicated that she really did not know anyone at the party, but then indicated that her sister and her sister's boyfriend were there. C.T. could not remember anyone else from the party. In cross-examination, she admitted that she never told the police how many people were at the party. She further admitted that she had no memory of her sister and boyfriend at the party, rather this was what her sister told her after the fact.

[8] C.T. was asked whether M.M. was at the party, but she indicated that she did not remember.

[9] Shortly after she arrived at the party, C.T. went into the kitchen, saw a bottle of Captain Morgan and started drinking it. The bottle was open when she started drinking from it. She was standing in the kitchen taking shots. She remembered taking 8 shots and then she blacked out. C.T. was asked whether anyone was drinking with her, and she said no. She admitted that it was not her bottle of alcohol and, in fact, she did not know who the bottle belonged to. C.T. did not remember whether anyone else was in the kitchen. She indicated that the alcohol made her feel warm. In cross-examination, C.T. was asked whether she ever mixed the rum with Pepsi, to which she replied "I don't think so", however, she admitted she was not sure.

[10] In cross-examination, C.T. admitted that she was not sure how many drinks that she consumed. She was then asked how she came up with the estimate of 8 shots in her examination in-chief, and she said because that's what she "remembered in the kitchen". She was asked whether she told the police it was 8 drinks and she said, "I don't think so". She agreed that she told the police that she drank from the Captain Morgan bottle and she had no idea how much she drank.

[11] C.T. then indicated that she went back to the couch and that was the last thing that she remembered. In cross-examination, she was asked whether it was possible that she sat with other people on the couch, and she said "I don't think so". C.T. only remembered being in the living room and in the kitchen. She did not remember being in the bedroom.

[12] C.T. testified that she did not do any drugs that night. She did not think anyone was doing drugs at the party that night. She said that people were not smoking marijuana at the party. When confronted with the fact that L.N. saw her smoking marijuana at the party, C.T. said that she did not remember. She also said that she had not smoked marijuana ever before. C.T. testified that before that evening she had tried alcohol twice. She did not remember if she threw up at the party.

[13] C.T. admitted in cross-examination that she told the police that her memory of being at the house was only about 20 minutes.

[14] C.T. did not remember leaving the party and had no idea why she had left the party with only her long-sleeve shirt on. She stated in cross-examination that others have told her how that came to be.

[15] The next thing that C.T. remembered was running. She was alone by the skate park which was toward the back of R's house. She was wearing only her long-sleeve shirt at that time. This was something that C.T. remembered, not something relayed to her by someone else, however, she admitted that she did not say this to the police. She also remembered laying in the snow at some point and trying to get up. The skate park was not along the way between R's house and her house.

[16] Her next memory was waking up in her room the next morning. Her feet were numb and her parents were staring at her. She was wearing a t-shirt and shorts, which was different from what she was wearing the night before. She could not remember if her parents were saying anything to her. C.T. did not know how she ended up at home from her own memory, only from what she had heard.

[17] C.T. then went to her sister's room which was next to hers. She asked her sister if she knew what happened. She testified that she was concerned as to why her feet were numb. She could not remember if anything else was hurting. C.T. spoke to her sister and then got ready to go to the hospital. She indicated that she went to the hospital because of her feet having frost bite. She saw a nurse and a doctor. She was at the hospital for about 30 minutes. The medical personnel said that there were 2nd degree burns on her feet, which they put cream on and dressed. At the hospital, there were other tests and examinations, but she did not remember the name of those tests or examinations and she could not remember if they told her why they were doing those tests or examinations.

[18] C.T. was asked about L.N., who she said was a friend. She testified that she did not see L.N. that night, however, in cross-examination, she admitted that while she did not remember seeing L.N. there, it was possible that she was at the party. C.T. was also asked about Ch.T., who she said was her cousin. She did not remember if he was at the party and she said that this was because she drank too much.

[19] C.T. was asked again whether M.M. was at the party and she responded, "I don't remember".

[20] C.T. testified about a message that she received on Facebook about 4 days after the party. C.T. and M.M. were friends on Facebook. She indicated that it was an apology that came from M.M.'s Facebook to her Facebook. He said he was sorry and that he respected her. C.T. was asked what MM was referring to and she said "I don't know". C.T. indicated that she responded to the message a couple of hours later and that this was the last time she spoke with M.M. A printout of the Facebook messages were entered as Exhibit 1. The messages stated in part as follows:

Hey C..I'm sorry, I'm really sorry. Idk what I was thinking that night..I have the highest respect for you, idk, I've done dumb shit too..doesn't everybody? I'm sorry, please respond

Like u have kno idea, I'm so sorry….idk what the hell to say. I'm so stupid..

You mean so much to me you don't even know

Like Idk if it seems crazy or anything ;) but I actually really liked u..idk I was supposed to say something else special…but let me know if u wanna talk :/

[21] The response to those messages was as follows:

I've spend the last few days in bed thinking of all the mean shit I can say to you but now it isn't even worth it, you completely broke me I'm never going to be the same person I hope your happy..

[22] The final message in Exhibit 1 read as follows:

No, I'm fukin destroyed..I'm sorry I know I'm an asshole. Your right it's not even worth it, just don't let this bring you down…I'm sorry I shouldn't even be bothering you.

[23] When asked why M.M. was a Facebook friend given that they really had no connection, she indicated that she tried to add all of the people from S.A.. M.M. was also a Facebook friend of her sister. When asked whether those messages were on her sister's Facebook as opposed to hers, C.T. said no. C.T. agreed that the messages came from M.M.'s Facebook account but that anyone could send messages from his account. She agreed in cross-examination that the sender of the messages is saying they are sorry but that you cannot tell what the person is sorry about.

[24] C.T. was unsure how many times she had met M.M. prior to that evening. She said that he was not a friend, that he was not someone she liked, and that he was not someone she wanted a relationship with. She really did not know M.M. very well and had only spoken to him once or twice.

[25] C.T. testified that her feet had injuries which took about a month to heal. She also had bruises on her knees and two bruises on her arm.

[26] C.T.'s parents eventually called the police and C.T. gave a statement to the police. C.T. thought that she spoke to the police at the station about a week after the party. She wanted to speak to police and she gave the police consent to obtain her medical records. C.T. did not remember which police officer she spoke to. The statement was audio and video recorded. She did not review the statement prior to testifying at trial. C.T. testified in cross-examination that her memory was better when she spoke to police.

[27] C.T. admitted that she does not remember the details of that night and in fact she does not want to remember that night.

[28] C.T. admitted in cross-examination that her friends had talked to her about the party since that time. Others had helped her fill in the blanks about the party. Her sister, L.N. and Ch.T. had all told her things. She admitted that the things that she testified to in court were not things that she remembered but rather what others had told her. She had heard that Ch.T. found her outside without proper clothing on, but she had no recollection of being outside after the party talking to him. She did not remember being at the party speaking to L.N. She admitted that L.N. told her that she thought she had been sexually assaulted and that this was before she spoke to the police. C.T. did not remember if L.N. told her who she thought had sexually assaulted her. Neither Ch.T. nor her sister told her that they thought she had been sexually assaulted.

L.N.

[29] L.N. was 19 years old at the time of her testimony. She attended the party at R's residence on January 30, 2016, however, she was not drinking that night. R is a cousin to L.N.

[30] She indicated that she arrived at the party with her ex-boyfriend at about 11:00 or 11:30 pm. She estimated that there were 12 to 14 people at the party.

[31] L.N. identified M.M. in court. She testified that she had known him for about 4 to 6 years and that he was at the party at R's house that night.

[32] She stated that people were drinking at the party and smoking weed but that she did not see any other drugs being used.

[33] L.N. knows C.T. and stated that she was also at the party that night.

[34] When L.N. arrived at the party, C.T. was drinking, but she did not know what she was drinking. C.T. was on the couch with M.M. and a few other people. L.N. testified that M.M. and C.T. were drinking and cuddling. She did not remember what M.M. was drinking. She did not see any tension between the two of them as they sat on the couch and they seemed to be comfortable with one another. When asked how people appeared, she said "not sober". L.N. did not remember if C.T. or M.M. were using marijuana. However, in cross-examination, she agreed that she had told the police that C.T. was using marijuana at the party. She then seemed to recall that she saw C.T. smoking marijuana from a bong in the back bedroom with a few other people. The timing of this was unclear.

[35] L.N. left the living room and when she returned, M.M. and C.T. were gone. Initially, she did not know where they went, but then R told her that two people were in the bedroom, that he did not want them in there, and asked her to kick them out.

[36] L.N. tried to go into the bedroom. On her first attempt, she was unable to get in. She knocked on the door and asked the people to come out, but the door was locked. She recalled that M.M. said "go away, it's ok". The door never opened. L.N. left the door and went to tell R that she was not able to get in. L.N. agreed that other people at the party would have been in a position to see and hear her banging on the door.

[37] L.N. returned to the room and attempted to get in. On this second attempt, L.N. testified that M.M. opened the door, wearing a blanket, and pushed her out. She agreed in cross-examination that she never told the police during her 38 minute statement that M.M. was wearing a blanket. She stated that she saw C.T. laying on the bed before she was pushed out and that C.T. was wearing a red sweater and a pair of boxers. When asked if C.T. was awake, she said "I think so". L.N. testified that she did not speak to C.T. The lights were off in the room. As M.M. pushed L.N. out of the room, he said "go away, it's fine" to which L.N. responded "ok" and took off.

[38] In examination in-chief, L.N. was asked whether she believed everything was fine to which she responded "no" and that she heard C.T. say "stop" a couple of times. Later on in her examination in-chief, she indicated that she heard her say stop when she went into the bedroom and she was not sure if C.T. was talking to her or to M.M. In cross-examination, she agreed that the hallway outside of the bedroom led to the combined kitchen/living room where the party was occurring and music was playing. She further agreed that she was not even sure that it was C.T. who said "stop" and in fact she was not even sure if it came from the bedroom, and that it might have come from the kitchen behind her. L.N agreed in cross-examination that she could not see much in the room as the lights were not on. She also agreed that M.M. is taller than she is and that she could not see past him in order to see what C.T. was wearing or doing at that time.

[39] L.N., having been pushed out of the room, went to go tell R what had happened. R still did not want them in the bedroom.

[40] L.N. testified that she returned to the room a third time and broke the door down. She testified that she was able to do this by running toward the door and throwing her body at the door, even though she only weighed about 100 pounds. She asked them to get up. According to L.N., C.T. looked like she was "out of it", which she explained meant that she was drunk and L.N. could not understand what she was saying. L.N. asked if C.T. was ok and she said "yeah, I'm fine". L.N. testified that she could only make out that she said "I'm fine, I'm good, I just want to go home". L.N. stated that she brought them out of the room and asked them to leave. Later in her testimony, L.N. added that when she went into the bedroom the third time, M.M. was on the bed beside C.T. and that M.M. was wearing "nothing that I can remember". However, she then testified that he was in the bed, so she did not observe what he was wearing. Also, later in her testimony, she added that she saw them move to the side when she broke the door down. She said that M.M. was on C.T. and then moved to the side. She had not said this initially.

[41] In cross-examination, L.N. testified that she managed to get M.M. to leave and that she was not sure what he was wearing when she came into the room on this third attempt. She said that after she bashed the door, she felt a little dizzy. She indicated that she found M.M. on the bed when she broke the door down. He got up, she told him to leave and he left. M.M. did not get mad or aggressive about getting tossed out. C.T. was still in the bedroom when M.M. left. M.M. did not say anything to C.T. in her presence. L.N. did not see M.M. again that night.

[42] L.N. was asked if C.T. knew where she was, to which L.N. stated that she was saying she was at home. L.N. repeatedly told C.T. that she was not at home, to which C.T. insisted that she was at home, and that this was her bed. L.N. indicated that C.T. did not really appear to understand. In cross-examination, L.N. agreed that when she was left with C.T. in the bedroom, C.T. was telling her that she had no right to do what she was doing, that this was her (C.T.'s) house and her (C.T.'s) bedroom. C.T. was standing up to L.N., telling her that she could not make her leave. C.T. became physically aggressive and scratched L.N.'s arms, but then apologized to her.

[43] L.N. confirmed that C.T. was wearing a sweater and boxers and that she suggested to C.T. that she should get her shoes and pants. L.N. and others searched the bedroom for her other clothing but were unable to find anything.

[44] L.N. asked C.T. if she could grab her clothes, however, C.T. was grabbing and pushing L.N., indicating that she was going to get her brother. L.N. testified that she asked if she could walk C.T. home, to which C.T. replied "no" and walked out the door. L.N. indicated that she did not see C.T. leave as she had walked away. At that point, C.T. was dressed in boxers and a sweater. L.N. testified that she was concerned for C.T. as she had few clothes on and it was cold outside. C.T. was not listening to her and she felt this was probably because she was drunk. L.N. did not see her again after she left the house. When asked if anyone went after C.T., L.N. said no. However, at one point, she suggested that her ex-boyfriend went out after her. L.N. testified that no one called C.T.'s parents or the police.

[45] L.N. indicated that a short time later, as she was leaving, she saw an ambulance at C.T.'s house. She later clarified that this was a couple hours after C.T. had left. She went over there to see what was going on. She said she was concerned.

[46] L.N. testified that she did not speak to C.T. after that night. The Crown then asked L.N., "You never talked to her about it?" to which she responded, "I don't remember".

[47] When asked in cross-examination whether she saw things that would suggest a sexual encounter, L.N. stated that she was not sure. L.N. was also unsure as to whether the things she saw suggested that C.T. was unwilling. Further, L.N. was unsure if C.T. said anything about being an unwilling participant in the bedroom.

[48] It was suggested to L.N. that some of the things that she was testifying to were not true, however she denied this. It was also suggested to her that she was trying to shift the blame to M.M., but she disagreed. L.N. did agree that C.T. ended up with fairly significant injuries and that if anyone was responsible for the injuries to C.T., it would be her.

Ch.T.

[49] At the time of his testimony, Ch.T. was 17 years old. He lived in S.A.. He and C.T. are 3rd or 4th cousin.

[50] He testified that he knows M.M. and that they used to be friends. At the time of these events, he had known M.M. for about a year or a year and half. He knew him from attending high school in Espanola.

[51] In January 2016, he lived close to C.T., approximately a three minute walk away.

[52] On January 30, 2016, when he was 16 years old, he attended a party at R's house. He arrived at approximately 10:00 or 10:30 pm. M.M. and C.T. were there when Ch.T. arrived. He knew C.T. was drinking by the way she was acting, such as she was staggering and not making sense when she talked. He had seen her drink before. M.M. was also drinking but he could not remember what he was drinking. He did not remember if C.T. and M.M. were together during the party.

[53] Ch.T. was drinking Budweiser that night and over the course of the night, he had about 15 cans of beer. He stated that he drinks once in a while and that 15 cans of beer affect him "pretty bad". He indicated he was not himself that night.

[54] Ch.T. left the party at approximately 2:45 am. He had not seen C.T. leave the party.

[55] After he left the party, he saw C.T. on the front doorstep of a neighbour's house banging on the door. She was "freaking out", screaming and crying. She was wearing a sweater, underwear and a hat. She had no pants or shoes. The lights inside the house were off but the lights outside were on. There was no car there and the driveway was snowed in. As Ch.T. approached her, he saw that her legs were frost bitten and her feet were "blistery". He thought C.T. was in danger of hypothermia and so he attempted to assist her. She was screaming that she wanted to go home and he was able to understand what she was saying. By this time, it had been about an hour since he had seen her at the party. He testified that he was not made aware that she had left but he did not see her anywhere and he was getting worried as he was wondering where she went. Her friends were still at the party. It was a cold evening – windy and snowy.

[56] The neighbour's residence was about a 3 to 5 minute walk from where C.T. lived. Ch.T. tried to help C.T. get home. He could not take C.T. to his house as his mother would "freak out", so he gave C.T. his jacket, wrapped his sweater around her legs and his over shirt around her feet. She was not able to walk on her own, as she kept falling. Ch.T. testified that she was "pretty drunk". He carried C.T. half way to her house, but it was slippery and he slipped and fell. He then put her over his shoulder and ran the rest of the way. He took her into the house and to her room. C.T.'s parents were home. He stayed for a minute, then took his clothing back and left. As he walked down the street, C.T.'s father waved him back and asked what had happened. Ch.T. explained what he could.

[57] Ch.T. was not cross-examined.

D.R.T.

[58] C.T.'s father, D.R.T., testified that he has four children. His daughter, C.T. was 15 years old in January 2016.

[59] On January 30, 2016, D.R.T. and his wife were home when C.T. stated that she was just going up the road with two of her friends. He did not know what time it was when she went out. Later that night, his wife came into the room, woke him up, and told him that C.T. came home with no pants and shoes. He was told that Ch.T. had brought her home. He was not sure what time this occurred.

[60] His wife put C.T. in bed and was trying to warm her up and comfort her. C.T. was disoriented, lost and confused. He had no idea how long she had been outside and was very concerned about hypothermia. C.T.'s mother was trying to ask her questions about where she had come from, what was going on, and where she got the drinks. D.R.T. was asked whether he could smell alcohol coming from her, and he responded "not so much". However, D.R.T. believed that she was suffering the effects of alcohol or drugs.

[61] D.R.T. told his wife that he was going out to see where C.T. came from. He went to a neighbour's house, but the house was being worked on and there were no footprints. He returned to his own house to ask his wife if C.T. had said anything. His wife was very distraught. His wife then told him that C.T. had mentioned at some point that she was going to R's house.

[62] D.R.T. went to R's house. The lights were on. He knocked but the door was locked. He went to the back patio door and saw people inside. He opened the door, went in, and saw C.T.'s friends. D.R.T. asked the friends if they knew where C.T. was and then advised them that she was home with no pants on. D.R.T. told them that they were "supposed to be her friends". As far as his observations at R's house, D.R.T. indicated that he saw a lot of teenagers and that the parents were not home.

[63] D.R.T. returned home and called the police. He said that he was concerned that she was raped. The ambulance came and then the police came. The ambulance attendants wanted to transport her in the ambulance, however, C.T. did not want to go. D.R.T. advised the emergency personnel of C.T.'s wishes and they instructed him not to let her shower or wash and to bring her to the hospital first thing in the morning.

[64] C.T. slept for about 4 or 5 hours.

[65] D.R.T. was not cross-examined.

Constable Chris Nakogee

[66] Constable Chris Nakogee was called by the defence. At the time of his testimony he had moved from S.A., however in January 2016, he was a police officer in S.A. First Nation. He had been a police officer for over 13 years and was the lead investigating officer on this case.

[67] He testified that the investigation began when they received a call on January 30, 2016 at 4:29 a.m. In February 2016, he took statements from various witnesses, including from C.T., L.N. one of C.T.'s friends that attended the party with her, and Ch.T. He did not take any statements after February 20, 2016 and there was no advance in the investigation after that date.

[68] Constable Nakogee testified that he arrested M.M. on August 1, 2016, almost 6 months after the last evidence was gathered. He indicated that during this gap in time, he consulted with the Crown Attorney's office.

Position of the Parties

Defence

[69] The defence initially submitted that this Court had no jurisdiction over M.M. as his age had not been proven. The matter was adjourned to allow written submissions and further oral submissions on this issue, however, the defence subsequently sent an email to the Court on November 7, 2017 to indicate that s. 16 of the Youth Criminal Justice Act resolved this issue and therefore, this argument would be abandoned. This was also confirmed on November 20, 2017 in Court.

[70] The defence submitted that there was a lack of direct evidence to provide any factual basis upon which to find that there was sexual activity or that it was between M.M. and C.T. Further, and in the alternative, the defence submitted that any such activity was consensual. It was submitted that the complainant described circumstances of how she found herself on the night, but made no assertion as to consent or lack of consent. There were no injuries and no complaints consistent with a sexual assault. Further, no physical examination or forensic evidence was introduced. The complainant was not able to lead the court to any circumstantial evidence of a sexual assault.

[71] Further the defence submitted that L.N.'s story was fabricated to shift blame from herself to M.M. for the sad, near death experience of C.T. L.N. ultimately admitted that she was not sure that she saw things from which inferences might be drawn. She asserted that she found two people in the bedroom but that was about as far as her evidence went. The defence pointed out that Ch.T. testified that he did not see anything and L.N. was not sure what she saw.

[72] The defence asserted that the Court could conclude that it might have happened and that it might have happened with these people, however that would not amount to proof beyond a reasonable doubt. The defence questioned whether this would be a reasonable inference in these circumstances and added that there were other logical and reasonable inferences to be drawn.

[73] With respect to the text messages, the defence submitted that the messages were apologies that purported to be from M.M., however, the court cannot be certain as to whether those messages went to C.T. or her sister. Further, the messages lack specificity as to what the apology is for, and might very well be an apology for having abandoned her at the party and for the injuries she ultimately suffered in the cold. The defence argued that the words of the messages give rise to speculation.

Crown

[74] The Crown took the position that the jurisdictional argument was meritless as the young person's date of birth was on the Information and there was proof of identify before the Court. As earlier stated, the defence conceded this point in an email dated November 7, 2017 and in Court on November 20, 2017.

[75] The Crown argued that there was evidence of a sexual assault. The Crown agreed that there was no direct evidence from the complainant herself, and the complainant attributed her lack of memory to blacking out. However, the Crown stated that all that is required is that the Crown establish touching of a sexual nature and that this was proven through L.N. According to the Crown, L.N. testified that she attempted to go into the room 3 times and when she went into the room, M.M. had a blanket wrapped around him. The Crown further pointed to the fact that L.N. testified that M.M. rolled off of C.T. and rolled to the side. The Crown argued that being on top of someone not wearing clothes established that there was touching of a sexual nature.

[76] The Crown agreed that there was a possible defence of consent because of the age gap between the complainant and M.M., however in this case the Crown argued lack of capacity to consent. C.T. left the party with no pants and attempted to get into another residence. C.T. had a lack of memory of the events at the party. C.T. thought she was in her bedroom and did not even seem to know that she was not wearing pants.

[77] The Crown referred to a number of cases on the issue of lack of capacity to consent, including: R. v. Jensen, R. v. M.T., and R. v. C.P.. Those cases have been reviewed by the Court in their entirety.

[78] The Crown submitted that it is unclear how much alcohol was consumed, however, it was clear that the complainant did not know what was going on when the bedroom was broken into by L.N., that she blacked out, left in an illogical way, and did not know she was not wearing pants at the time.

[79] Finally, the Crown submitted that the Facebook messages were clear evidence of an apology for the conduct that occurred in the bedroom.

Defence Reply

[80] In reply, the defence submitted that this case was distinguishable from the cases presented by the Crown. The defence argued that it was uncertain in this case as to whether C.T. was unable or unwilling to remember. Further, there was no expert evidence called in this case to demonstrate the mental state of C.T. The Crown claimed that the complainant was "out of it", yet the best evidence we had, according to the defence, was that at one point she wanted to go home and then said she was home. In terms of understanding C.T.'s disorientation at the time, the evidence came from L.N. The defence argued that L.N.'s evidence was compromised in that she was unsure of what she heard and saw, for example, the comment "stop" might not have come from the bedroom. Further, L.N.'s evidence must be considered in light of the fact that she was responsible for C.T.'s condition, having thrown her out of the party.

[81] On a later return date, November 20, 2017, the defence provided some case law on the issue of consent and submitted the following 8 factual points for the court to consider on the issue of capacity to consent:

• The complainant and accused were seated together cuddling;
• There was no evidence of how the complainant came to be in the bedroom;
• There was no evidence as to how the clothing of the complainant was removed;
• There was no evidence of where the clothing was removed – nothing was found in the bedroom;
• There was no evidence that the complainant lost consciousness at any time;
• There was evidence that the complainant uttered words to L.N. consistent with consent;
• There was really no evidence that the complainant uttered any words inconsistent with consent;
• The complainant interacted with L.N. – spoke, moved about, she was ordered to leave the residence and she complied.

[82] On this return date, the Crown made no further submissions.

Analysis

[83] The obligation to prove guilt rests with the Crown. To prove guilt of an offence, Crown counsel must prove each and every essential element of the offence beyond a reasonable doubt.

[84] Sexual assault is the intentional application of force, committed in circumstances of a sexual nature, such that the sexual integrity of the complainant is violated. (R. v. Chase, [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97 at para 11 and R. v. Litchfield, [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 at para 7.)

[85] In the present case, involving a charge of sexual assault, the Crown must prove:

(1) that M.M. intentionally applied force to C.T.;

(2) that C.T. did not consent to the force that M.M. intentionally applied;

(3) that M.M. knew that C.T. did not consent to the force that M.M. intentionally applied; and

(4) that the force that M.M. intentionally applied took place in circumstances of a sexual nature.

[86] There is agreement that section 150.1(2.1) applies in this case. That section states:

If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

[87] In assessing the credibility of witnesses in this case, I have considered, among other things, their power of observation, memory, the passage of time, any bias, partiality, or interest in the outcome, and demeanour as they testified. I have considered the reasonableness of the evidence. I have considered inconsistencies within the evidence at trial as well as inconsistencies between the evidence at trial and statements to police.

[88] The Court may accept some, none or all of a witness's evidence, and accord different weight to different parts of the evidence that is accepted: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 72; R. v. Howe, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

[89] A verdict of guilty may, in some cases, be properly rooted in the evidence of a single witness: Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at pp. 819-820.

[90] Credibility is a question of fact.

[91] In considering the reliability of the evidence, I have considered the accuracy of perception and memory, and factors that may have affected that. Even the evidence of an honest witness may be of questionable reliability.

[92] In R. v. Morrissey, 97 C.C.C. (3d) 193, at 205, Doherty J.A. stated the following:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

[93] On the totality of the evidence, I am not convinced beyond a reasonable doubt that M.M. applied force to C.T. or that any possible force applied took place in circumstances of a sexual nature.

[94] C.T. has absolutely no memory of M.M. at the party whatsoever. Ch.T., even though he recalled that M.M. and C.T. were both at the party, he did not recall whether M.M. and C.T. were together during the party. D.R.T., C.T.'s father, was not at the party, therefore, of course, cannot assist the Court as to what occurred there. That leaves the Court with the evidence of L.N. In considering the evidence of L.N., however, I do so in the context of the totality of the evidence in this case.

[95] L.N.'s evidence is awash with difficulties. I agree with the defence that L.N. may have a reason to divert attention away from herself and on to another person, given her admitted responsibility for the condition C.T. found herself in, yet, this alone would not lead me to disregard her evidence in any significant way. However, L.N., herself, admitted that she was not sure what she saw or heard in the bedroom. This causes the court a great deal of concern about the reliability of her testimony.

[96] Further problems with the credibility and reliability of L.N.'s testimony are as follows:

• L.N. testified that she did not remember if C.T. or M.M. were using marijuana. However, in cross-examination, she agreed that she had told the police that C.T. was using marijuana at the party. She then seemed to recall that she saw C.T. smoking marijuana from a bong in the back bedroom with a few other people.

• On L.N.'s second attempt to get into the room, she testified that M.M. opened the door, wearing a blanket, and pushed her out. She agreed in cross-examination that she never told the police during her 38 minute statement that M.M. was wearing a blanket.

• Also during this second attempt to get into the room, L.N. initially testified that she saw C.T. laying on the bed before she was pushed out. She believed that C.T. was wearing a red sweater and a pair of boxers. When asked if C.T. was awake, she said "I think so". L.N. did not speak to C.T. The lights were off in the room. As M.M. pushed L.N. out of the room, he said "go away, it's fine", to which L.N. responded "ok" and took off. She did not initially mention anything being said by C.T. However, a little later in her examination in-chief, L.N. stated that she heard C.T. say "stop" a couple of times. Even further on in her examination in-chief, she testified that she heard her say "stop" when she went into the bedroom, and she was not sure if C.T. was talking to her or to M.M. In cross-examination, she agreed that the hallway outside of the bedroom led to the combined kitchen/living room where the party was occurring and music was playing. She further agreed that she was not even sure that it was C.T. who said "stop" and in fact she was not even sure if it came from the bedroom, it might have come from the kitchen behind her. L.N. agreed in cross-examination that she could not see much in the room as the lights were not on. She also agreed that M.M. is taller than she is and that she could not see past him in order to see what C.T. was wearing or doing at that time.

• L.N. claimed that she was able to run, throw herself at a bedroom door, and break it down, even though she admitted that she weighed about 100 pounds. In my view, this seems unlikely.

• Initially, when L.N. described the third attempt and success at entering the room, she testified that she asked them to get up. C.T. looked like she was "out of it", which L.N. explained meant she was drunk and that she could not understand what C.T. was saying. L.N. asked if C.T. was ok and she said "yeah, I'm fine". L.N. testified that she could only make out that she said "I'm fine, I'm good, I just want to go home". L.N. testified that she brought them out of the room and asked them to leave.

• Later in her testimony, L.N. added that when she went into the bedroom the third time, that M.M. was on the bed beside C.T. She said that M.M. was wearing "nothing that I can remember", but then testified that he was in the bed so she did not observe what he was wearing. Then she added that she saw them move to the side when she broke the door down. Further, she said that M.M. was on C.T. and then moved to the side. She had not said this initially.

• In cross-examination, L.N. testified that she was not sure what M.M. was wearing when she came into the room on this third attempt. She said that after she bashed the door, she felt a little dizzy. She indicated that she found M.M. on the bed when she broke the door down. He got up, she told him to leave and he left. C.T. was still in the bedroom when M.M. left.

• L.N. suggested that she was concerned for C.T., as she had few clothes on and it was cold outside. When asked if anyone went after C.T., L.N. said no, however, at one point she suggested that her ex-boyfriend went out after C.T. L.N. testified that no one called C.T.'s parents or the police.

• L.N. testified that she did not speak to C.T. after that night. The Crown then asked her, "You never talked to her about it?" to which she responded, "I don't remember".

• When asked in cross-examination whether she saw things that would suggest a sexual encounter, L.N. stated that she was not sure. L.N. was also unsure as to whether the things she saw suggested that C.T. was unwilling. Further, L.N. was unsure if C.T. said anything about being an unwilling participant in the bedroom.

[97] Whether in fact M.M. applied force to C.T. and whether that force took place in circumstances of a sexual nature relies heavily, if not completely, on the evidence of L.N.. I would have to be convinced beyond a reasonable doubt that L.N. saw something occurring in the bedroom from which I could reasonably infer that M.M. applied force to C.T. and that the force took place in circumstances of a sexual nature. Due to the various frailties in the evidence, particularly that of L.N., as outlined above, I am not convinced beyond a reasonable doubt on either of those points.

[98] Further, the Facebook messages do not amount to an admission of having touched C.T. in a sexual manner. The messages do appear to be an apology but do not set out what that apology is for. Further, I am not satisfied that those messages came from M.M. to C.T. To use these messages as an admission by the accused, would amount to pure speculation and guess-work.

[99] There is no other evidence to suggest that touching of a sexual nature occurred. For example, no medical evidence was led.

[100] I do not therefore need to deal with the element of consent, given that I am not convinced beyond a reasonable doubt that force was ever applied or that the force took place in circumstances of a sexual nature.

Conclusion

[101] I find M.M. not guilty of the offence of sexual assault.

Released: January 8, 2018

Signed: Justice V. Christie