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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

A non-publication and non-broadcast order in this proceeding has also been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. D.A., 2018 ONCJ 307

DATE: May 9, 2018

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D.A., a young person

Before Justice M. Speyer

Heard on Aug. 28, Sept 21, Oct 3 and 6, Nov. 17 and 22, Dec. 15 and 21, 2017

Oral reasons for Judgment delivered on March 22, 2018

Written Reasons for Judgment released on May 9, 2018

M. Petrie................................................................................................. counsel for the Crown

L. Riva....................................................................................... counsel for the accused D.A.

JUSTICE M. SPEYER:

[1] D.A., a young person, is charged with sexual assault of C.V.L. The incident that gave rise to this charge occurred in the early morning hours of July 30, 2016 in a wooded area behind the apartment buildings at 15 and 25 Cougar Court, Scarborough. The complainant was heavily intoxicated at the time. She met D.A. and the adult accused, Dejan Petrovic, as she walked in the parking lot behind the apartment buildings. She alleges that a sexual encounter occurred between herself, the young person and the adult accused without her consent. Following the incident, C.V.L. asked a passer-by to call the police. Police officers arrived at 4:10 a.m. and after an initial investigation, took her to hospital where a sex assault examination was performed. C.V.L. was then taken to 43 Division where she gave a videotaped statement recounting what had occurred earlier. The young person and Mr. Petrovic were arrested later in the day on July 30, 2016 at 15 Cougar Court, apartment 1408.

The evidence:

[2] C.V.L. was 19 years old at the time of this incident. She testified at trial and recounted what she could recall of the events that led to her encounter with D.A. and Mr. Petrovic. She testified that she had worked until about 10 p.m. After work, she went to a party at a friend’s house and then to a bar. Over the course of the night, she consumed a large quantity of rum and smoked marijuana. She testified she was “beyond drunk”, that everything seemed funny to her and she couldn’t walk properly.

[3] At some point in the night her friends left the bar and C.V.L. decided to take the bus home alone. She got off the bus at Cedar Dr. and walked towards 25 Cougar Court cutting across the parking lot behind the apartment buildings where she met two young men she did not know. They spoke a foreign language, possibly Croatian. The next thing she remembered was sitting on a curb and being held down by one of the men. She testified she had a bad feeling about the situation and told them she had to go home, but they would not let her leave. Her next recollection was of running out to the front of 25 Cougar Court and asking a man on the street to call police because she had been raped.

[4] C.V.L. was permitted to refresh her memory by referring to her July 30, 2016 statement. It assisted her in recalling that at some point, one of the men was on top of her and one held her down as she repeatedly said “no” she had to go home to look after her brother.

[5] I permitted the Crown to cross examine C.V.L. on inconsistencies between her testimony and her July 30, 2016 statement. During the course of that cross-examination, C.V.L. adopted additional portions of her statement, including her recollection of having something that felt like a penis in her mouth. She also recalled that she repeatedly said “no” and told the men that she had to go home, but at least one of them would not let her leave. C.V.L. recalled being held by her arm, near her wrist as she said no.

[6] Following an application, I allowed the Crown to introduce the following portions of C.V.L.’s July 30, 2016 statement under the principled exception to the hearsay rule. In that statement, C.V.L. described the following additional details:

• The men were holding her down and the next thing she remembered, half her clothes were being pulled down. They were “basically doing what they wanted” with her. She tried to get up, but they were on top of her, holding her back. (statement p. 4)

• They tried to pull her pants down and spoke in their language. They were laughing. She was just sitting. From there, everything is blacked out. (statement p. 15)

• They had sex with her while she kept saying no. They put their penis inside her vagina. She kept saying “no, I have to go home, like stop”. She cannot recall which one was on top of her, but they would not stop. At some point they got off of her and she grabbed her belongings and left. She does not recall if one or both of them put his penis in her vagina (statement p. 16-17)

• She does not recall if one or both of them were on top of her. She recalls at some point, one was on top of her, but she does not know if they switched. She believes her tank top was pulled down. (statement p. 18)

• When it was happening, she told them to stop. She kept saying “no, stop, I need to go home now”. She told them her brother was home and she needed to take care of him, but they would not stop. At one point, she just gave up and that’s when they finally stopped. She then picked up her stuff and left. (statement p. 24)

[7] C.V.L. made a second videotaped statement to police two weeks later on August 13, 2016. In this statement she told D/C Ashley that Sinisa, a person she had identified in her July 30, 2016 statement as possibly being one of the assailants, was not in fact involved. She also told D/C Ashley that she did not believe she was vaginally penetrated as initially disclosed in her first statement. This statement was made on a promise to tell the truth following a caution similar to the one provided by police on July 30, 2016.

[8] In addition to C.V.L., the Crown called the following witnesses:

[9] Kishan Patel, 25, testified that on July 30, 2016, he was walking home to his apartment on Cougar Court at around 4 a.m. when he saw a young woman, later identified as the complainant, crying and running towards him on the sidewalk. C.V.L. asked Mr. Patel for help and to call police, saying she had been robbed. She was worried that her small brother was in the apartment and she was without her keys. Mr. Patel saw that C.V.L.’s purse was empty. Mr. Patel called 911 at 4:03 a.m. and police arrived as he was still speaking on the phone.

[10] Mr. Patel observed that C.V.L. had been drinking and she was “ a little bit drunk”. He explained that because she was constantly crying it was difficult to judge from her speech but could tell from her movements that she was drunk because “she’s not fully controlled”. In cross examination, Mr. Patel agreed that C.V.L. told him she had been walking behind the apartment buildings when two guys jumped her and robbed her. He agreed that the complainant made no mention of a sexual assault.

[11] L.B. was a friend of C.V.L. They had been together at a bar for a party on the night of the incident. They were together from 11 p.m. to around 1 a.m. She testified that C.V.L. had a lot to drink and was drunk, clumsy and falling down everywhere. C.V.L. was losing her possessions and accusing people of taking her things. For this reason, Ms. L.B. decided to hold on to C.V.L’s valuables, including her cell phone. Ms. L.B. left the bar at around 1 a.m., and does not know when C.V.L. left the bar.

[12] At around 3:40 a.m., Ms. L.B. received a call from C.V.L. who sounded drunk, was talking very fast, saying random things, and her words were slurred. C.V.L. told her she was with two guys who were very pushy and she needed her. Ms. L.B. heard some scrambling on the phone and the call ended abruptly. She immediately went to C.V.L.’s building on Cougar Court and found C.V.L. in a police car, crying, and upset and confused. C.V.L. told Ms. L.B. she had been raped.

[13] In cross-examination, Ms. L.B. acknowledged that she had not mentioned to police that C.V.L. told her the men were “pushy” or that she needed help. She confirmed that in her police statement, she told police that C.V.L. did not sound in distress but giddy. However, at trial, she maintained that C.V.L. sounded like she was in a rush, didn’t sound like herself, and did sound distressed. She denied that she was attempting to make it seem like C.V.L. was in worse shape than she was. She agreed she had been a close friend of C.V.L. at the time but testified the two had grown apart since the incident and had not spoken since the night of the incident.

[14] PC Martin Tomaszewski was dispatched to 25 Cougar Court in response to what was originally a robbery call. He arrived at 25 Cougar Court at 4:10 a.m. He located a young woman, identified as C.V.L., crying and hysterical. She had slurred speech, a strong odour of alcohol on her breath, erratic mood swings and difficulty focusing on questions. He testified that it was clear to him that she was very much intoxicated. PC Tomaszewski agreed that these observations are not documented in his notes. He explained that in the circumstances, he was more concerned with what had happened and getting information on the suspects. After questioning C.V.L., he and his partner took her to Scarborough Grace Hospital for examination.

[15] Nurse Rita Kadri conducted a sexual assault examination of C.V.L. on July 30, 2016 at 6:04 a.m. By agreement, her notes were admitted at trial. The notes contain a diagram setting out the nurse’s observations of injuries on C.V.L. including the following:

• Abrasions to C.V.L.’s left and right knees

• Bruises on her left knee

• Abrasions to the back of her right and left arm

• Abrasions to her inside left arm

[16] As part of the sexual assault examination, Nurse Kadri collected various swabs and samples from C.V.L. including a sample of her blood taken at 8:30 a.m. C.V.L.’s clothing was also collected. All of these items were turned over to PC Kirkwood, who took them to the Forensic Identification Unit for processing.

[17] DC Stepanenko is a Scene of Crime officer. At 11:15 a.m. she took photographs of C.V.L. at the police station. Her photographs were made Exhibit 2A-S at the trial and show C.V.L. had a number of bruises and abrasions on her knees and arms. DC Stepanenko made a note of the following injuries on C.V.L.:

• Scrapes to both knees and elbows

• 2” Abrasion inside her left elbow

• 1” scratch inside left forearm, by the wrist

• 1” X 1” bruise inside left forearm, by the wrist

[18] The blood sample taken from C.V.L. during the Sexual Assault Examination was analysed by Dr. Darryl Mayers, a forensic toxicologist at the Centre of Forensic Sciences. He testified that based on the amount of ethanol in the blood sample, C.V.L.’s alcohol content at the time of the incident would have been in the range of 189 to 241 mg of alcohol in 100 ml of blood. At this level, the expected effects of alcohol for “light to moderate” drinkers included slurred speech, incoordination of motor skills, staggering and even impaired consciousness. He agreed that a light to moderate drinker might display all, some or none of these symptoms. In order for a person to develop sufficient tolerance to alcohol to not exhibit these symptoms, he or she would have to drink sufficient amounts to reach a similar blood alcohol concentration on a daily basis. He was not able to give an opinion about the complainant’s capacity to consent with this amount of alcohol in her system.

[19] Roger Frappier, a biologist with the Centre of Forensic Sciences, analysed the various biological samples found on C.V.L.’s body and underwear during the sexual assault examination. He found the following:

• D.A.’s DNA was located on C.V.L.’s external genitalia

• D.A.’s semen was located on the crotch of C.V.L.’s underwear

• D.A.’s saliva was located on the crotch area of C.V.L.’s underwear

• D.A.’s DNA was located on C.V.L.’s left and right breast

• Mr. Petrovic’s DNA was located on C.V.L.’s left and right breast

[20] Mr. Frappier testified that while he was not able to do testing to determine the source of the DNA on C.V.L.’s breasts and genitals, the large quantity of DNA found suggested it came from some form of bodily fluid such as saliva or semen. Further, while he was unable to say how the DNA came to be deposited on C.V.L.’s breasts, genitals and underwear, he testified it was consistent with oral sexual contact and possibly penile penetration.

[21] The Crown tendered as evidence surveillance video from inside and outside 15 Cougar Court, the apartment building where D.A. resided on July 30, 2016. It was agreed that the video depicted D.A. and Mr. Petrovic and the events from the night in question, beginning with C.V.L.’s appearance in the parking lot area between 15 Cougar Court and 25 Cougar Court and ending with the young person and Mr. Petrovic returning to their apartment at 15 Cougar Court. The video shows the following:

• Just after 3:07 a.m., C.V.L. is walking in a northbound direction across the parking lot to 15 Cougar Court and 25 Cougar Court from nearby Cedar Drive. She appears to have a staggered gait. She falls down behind a vehicle in the parking lot, temporarily disappearing from view.

• At 3:09:06 a.m., C.V.L. walks across the parking lot. She appears unsteady as she walks.

• At approximately 3:10:24, a.m. D.A. and Mr. Petrovic walk southbound through the parking lot in a path towards C.V.L. who is walking in the opposite direction.

• At approximately 3:10:32 a.m., D.A. and Mr. Petrovic stop walking after they encounter C.V.L. The three appear to briefly interact and at 3:11:10, C.V.L. puts her hands to her mouth. She appears to be making attempts to light a cigarette. At approximately 3:13:05 a.m., the young person and Mr. Petrovic walk with C.V.L. to the north end of the parking lot behind 15 Cougar Court towards the wooded area.

• At 3:50:36 a.m., the young person and Mr. Petrovic emerge from the wooded area and walk towards 15 Cougar Court.

• At 3:53:32 a.m., Mr. Petrovic and D.A. enter 15 Cougar Court through the back door. They then proceed to the building’s elevators and exit the elevator on the 14th floor.

The issues:

[22] The issue in this case is whether the Crown has proven beyond a reasonable doubt that C.V.L. did not consent to sexual activity with D.A.

[23] The Crown submits that it has proved lack of consent in fact, as well as incapacity to consent beyond a reasonable doubt. The Crown further submits that there is no evidence to suggest that D.A. believed that C.V.L. had communicated her consent or that he was mistaken as to her consent.

[24] Counsel for D.A. argues that the evidence falls short of establishing proof beyond a reasonable doubt that C.V.L. did not consent to the sexual activity. Counsel points to the frailties in C.V.L.’s evidence and specifically, to her complete lack of memory of any sexual activity. Counsel further submits that C.V.L.’s videotaped statement, portions of which I admitted into evidence, is similarly unreliable.

Applicable legal principles:

[25] Section 265(1)(a) of the Criminal Code states that a person commits an assault when, without the consent of another person, he or she applies force intentionally to that other person, directly or indirectly. Subsection (2) states that this definition applies to all forms of assault, including sexual assault.

[26] Section 273.1 defines the meaning of consent in sexual assault offences. The relevant portions are as follows:

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

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

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

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

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

[27] In addition, s. 273.2 of the Code prohibits certain defences to a charge of sexual assault. Under s. 273.2(a)(ii), an accused cannot rely on a defence of honest but mistaken belief in consent, if that belief was due to wilful blindness or recklessness. Further, under s. 273.2(b), the defence is only available where an accused has taken reasonable steps to ascertain consent.

[28] The elements of the offence of sexual assault were summarized by the Supreme Court of Canada in R. v. Ewanchuk (1999), 1999 711 (SCC), 131 CCC (3d) 481 at para 23, 25 and 26:

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

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

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

[29] In R. v. J.D.A., 2011 SCC 28, [2011] S.C.J. No. 28, the Supreme Court of Canada defined consent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter. This requires the complainant to have a conscious operating mind throughout the sexual activity capable of granting, revoking or withholding consent to each and every sexual act. The question is whether the complainant was subjectively consenting in her mind to each and every sexual act. Moreover, the complainant need not express her lack of consent or her revocation of consent for the actus reus to be established.

[30] Thus the Crown must prove beyond a reasonable doubt that the complainant either did not consent, or was incapable of consenting. Incapacity means “incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation” (see R. v. M.D.A.P., 2004 NSCA 27, [2004] N.S.J. No. 55 (C.A.); R. v. St. Laurent (1993), 1993 4380 (QC CA), 90 C.C.C. (3d) 291 (Que. C.A.).

[31] Intoxication can render a person incapable of consenting to the sexual activity in question. Whether a person is so intoxicated as to render her incapable of making a conscious and informed choice about whether to consent to the sexual activity is a question of fact based on all of the evidence. While mere drunkenness is not the same as incapacity to consent, a complainant need not be so intoxicated as to be unconscious to lack capacity. She may still have some cognitive awareness, capable of walking or talking, yet still be incapable of consenting to sexual activity. Lack of memory of the sexual activity is also not the same as incapacity to consent. However, memory loss or “blackouts” may be circumstantial evidence from which it may be inferred that the complainant was not capable of consenting at the relevant time (see: R. v. J.R., 2006 22658 (ON SC), [2006] O.J. No. 2698 (S.C.); R. v. J.W.M., [2004] O.J. No. 1295 (S.C.); R. v. Meikle, [2011] ONSC 650; R. v. Nyznik, 2017 ONSC 4392).

[32] A person has the required mens rea for sexual assault when he or she intends to touch knowing that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent.

[33] An accused may raise the defence of honest but mistaken belief in consent; however, there must be evidence showing that he or she believed that the complainant communicated consent to engage in the sexual activity in question. The defence of honest but mistaken belief in consent must arise from the evidence, and not on speculation. As held in R. v. Ewanchuk, in the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused.

Analysis:

[34] D.A. is presumed to be innocent, unless and until the Crown has proven each essential element of the offence of sexual assault beyond a reasonable doubt.

[35] There is ample evidence to establish beyond a reasonable doubt that C.V.L. and D.A. had a sexual encounter on July 30, 2016. The presence of D.A.’s semen and saliva on the crotch of C.V.L.’s underwear and his DNA on C.V.L.’s external genitalia and her breasts is sufficient for me to conclude that D.A. engaged in an intimate sexual act with C.V.L. I accept Mr. Frappier’s expert evidence that the quantity of DNA on C.V.L.’s breasts and genitals suggests it came from some form of bodily fluid such as saliva or semen and that it is consistent with oral sexual contact, penile contact and/or sexual intercourse.

[36] As stated earlier in these reasons, the only issue is whether the Crown has proven beyond a reasonable doubt that C.V.L. did not consent to sexual activity with D.A.

[37] I remind myself that reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that D.A. is probably guilty of this offence. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[38] On a careful consideration of all of the evidence, I am satisfied beyond a reasonable doubt that C.V.L. neither had the capacity to consent and nor did she express any consent to the sexual activity.

[39] I find as a fact that C.V.L. was in an advanced state of intoxication and lacked the capacity to consent to the sexual activity in question. I base my conclusion of the following evidence:

• There is uncontradicted evidence from C.V.L. that she had consumed a large quantity of alcohol. She estimated that she had consumed 5 to 10 drinks at her co-worker’s house before going to the bar, more alcohol on the bus on the way to the bar and more than 10 shots of alcohol while at the bar. This is corroborated by Dr. Mayers evidence that, based on the blood sample taken from C.V.L. at the hospital, her blood alcohol level at the time of the incident would have been between 189 and 241 mg per 100 ml of blood.

• C.V.L. testified that she was “beyond drunk,” that she was blacking out, that she “couldn’t really walk” and “everything was funny,” that she “just kept laughing…”

• Ms. L.B. testified that C.V.L. was drunk, was very clumsy and was falling down everywhere at the bar and that she had taken C.V.L.’s valuables from her to safeguard them on account of C.V.L.’s drunken state. When she spoke to C.V.L. at approximately 3:40, C.V.L. was slurring her words, saying “random things” and appeared “giddy”.

• Surveillance video of the parking lot (Exhibit 4) shows C.V.L. falling down in the parking lot moments before she encountered D.A. and Mr. Petrovic. She appears to have a staggered gait as she approaches the two males. She also appears to have difficulty lighting a cigarette.

• Immediately following the assault, it was “very clear” to the first officer who responded to the call and who transported C.V.L. to hospital that C.V.L. was “very intoxicated.” PC Tomascewski testified that C.V.L. had slurred speech, a strong odour of alcohol coming from her breath, difficulty focusing on his questions and that her overall demeanor was somebody who was intoxicated.

[40] Dr. Mayers testified that the complainant’s blood alcohol at the time of the incident would have been between 189 and 241 mg per 100 ml of blood. He testified that at this level, a person would experience significant intoxication and its effects could include slurred speech, loss of co-ordination of motor skills and staggering gait. These symptoms are consistent with the observations of the above witnesses of C.V.L. at or near the time of the offence.

[41] In these circumstances I do not place much weight on Mr. Patel’s evidence that C.V.L. was “a little bit” drunk or that she spoke perfectly. In cross examination, he conceded that that it was apparent to him that C.V.L. was drunk and that her body movements were those of a drunk person.

[42] I am also satisfied beyond a reasonable doubt that C.V.L.’s high level of intoxication rendered her incapable of consenting to sexual activity with the young person and Mr. Petrovic. C.V.L. testified, and I accept, that she was not fully aware of what was happening at the relevant time. For example, she testified that she did not know how something ended up in her mouth. She thought it was a penis, but could not be sure, although it felt like one. She was also not able to say whether one or both of the men had vaginally penetrated her. She recalled one of the men on top of her but could not recall what was happening.

[43] In the circumstances of this case, I consider C.V.L.’s lack of memory as circumstantial evidence from which I can infer that she was not capable of consenting to the sexual acts. When considered in conjunction with C.V.L.’s high level of intoxication, her lack of awareness of what was happening is powerful evidence that she was not capable of consenting to the sexual acts.

[44] I am also satisfied beyond a reasonable doubt that to the extent C.V.L. was capable of consenting, she did not in fact consent to the sexual activity and communicated her lack of consent to D.A. and Mr. Petrovic. I base this finding on the following evidence:

[45] C.V.L. testified at trial that she was uncomfortable and had a bad feeling about what was happening. She repeatedly told the men she wanted to leave, that she had to go home, that she had to take care of her brother, but they would not let her leave. She testified that they held her down and would not let her leave. She recalled the men having sex with her while she said no. C.V.L. recalled being held by her arm, near her wrist as she said no. C.V.L. has injuries on her arm, near her wrist, consistent with being held.

[46] C.V.L. testified that having a penis in her mouth was something that she didn’t want to have happen and that she kept her eyes closed so that she wouldn’t have a memory of the experience.

[47] I disagree with defence counsel’s submission that C.V.L.’s lack of memory of the incident should raise a reasonable doubt in my mind about whether she did express consent. There is no question that at trial, C.V.L. had a limited memory of what occurred and the extent of the sexual activity. However, it is also clear that from what she could remember and recount – either at trial or in her July 30, 2016 statement – that she never consented to have sex with the D.A. or Mr. Petrovic.

[48] There is other evidence to support the conclusion that C.V.L. did not consent. Her demeanor shortly after the incident is consistent with someone who has experienced a traumatic event. She testified that after the men left her, she ran to the front of the building to get help. Mr. Patel observed the complainant shortly after the incident, describing her as crying and upset. It is true that C.V.L. told Mr. Patel she had been robbed, but given her condition, I do not consider this to this to be a major inconsistency, especially because a short time later, C.V.L. told the police and Ms. L.B. that she had been raped.

[49] C.V.L. had abrasions to the back of her right and left arm and abrasions to her inside left arm. Photographs document a one inch scratch and bruise to the inside left forearm, by her wrist. C.V.L. testified that she believed she received these injuries from being held by one or both of the men. The act of being forcibly held by one or both accused is inconsistent with her voluntary agreement to engage in sexual activity.

[50] I found C.V.L. to be both credible and reliable. She did not embellish. She was completely candid about her lack of memory, the amount of alcohol she consumes and her regular use of marijuana.

[51] C.V.L. paid careful attention to the truth. For example, in her statement of July 30, 2016, she candidly told Det. Ashley that while she initially thought Sinisa was one of the men involved in this incident, she was not in fact certain of this. In her subsequent statement of August 13, 2016, she confirmed that Sinisa was not involved.

[52] She was similarly candid about whether there had been vaginal penetration. She was candid in expressing her lack of memory about this detail. She testified that she realized she was not sure about whether there was vaginal penetration because she had tried to push the memory of what had occurred from her mind.

[53] For the reasons stated in my ruling of November 21, 2017, I found C.V.L.’s statement of July 30, 2016 to be sufficiently reliable to meet the threshold test for admissibility at trial. I find that the statement is also substantially credible and reliable. The statement was made within hours of the offence when the complainant’s memory of events was still fresh and at a time she was trying to remember and accurately recount the events that had just occurred. Although feeling the aftereffects of the alcohol, she was no longer intoxicated. The videotape of her statement shows that C.V.L. is coherent, logical and responsive.

[54] As pointed out by the Crown in her written submissions, the details recounted by C.V.L. in her statement is corroborated in material respects by other evidence. For example:

• C.V.L. told police that she had been sexually assaulted by two males. DNA evidence confirmed the presence of two males’ DNA on her breasts, genitals and underwear.

• C.V.L.’s description of one male being on top of her having sexual intercourse with her was consistent with the deposits of D.A.’s semen found in C.V.L.’s underwear. Further, her description of her tank top being “pulled down” and both males “basically doing what they wanted with me” was consistent with both males DNA being located on her breasts.

• C.V.L. told police that men used force to hold her down and that she had been held down by her wrists on the ground. Notes from Nurse Kadri and photographs of C.V.L.’s arms corroborate that she suffered injury to her arms consistent with her description of events.

• C.V.L. provided a detailed physical description of the two males she had encountered in the parking lot that was consistent with D.A. and Mr. Petrovic’s appearance upon arrest and in the surveillance video Exhibit 4.

• C.V.L.’s account of the events leading up to and following her encounter with Amic and Petrovic was corroborated by Ms. L.B.’s and Mr. Patel’s evidence.

• C.V.L.’s demeanor shortly following the sexual assault, as described by three witnesses who saw C.V.L. shortly after the assault who described C.V.L. as crying, very upset and hysterical, was consistent with the incident having occurred as described by C.V.L. in her statement

[55] I am also satisfied beyond a reasonable doubt that D.A. had the requisite mens rea to commit the offence of sexual assault. The evidence establishes and I find as a fact that the complainant, to the extent she was cognizant of the sexual activity, repeatedly told D.A. and Mr. Petrovic “no” and to stop. The evidence further established that at the time of the sexual activity C.V.L. was heavily and obviously intoxicated and incapable of given her consent.

[56] There is no evidence before me to raise a reasonable doubt that D.A. had an honest but mistaken belief in consent. As discussed above, in order to raise this defence the evidence must show that the accused believed that the complainant communicated consent to engage in the sexual activity in question. In this case there is no evidence that the complainant expressed her consent. To the contrary, I have found as a fact that she expressed her lack of consent.

[57] Further, the courts have held that 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. In this case there is no evidence that the complainant at any point or by any means communicated consent to engage in sexual activity with D.A. Nor is there any evidence that D.A. took any steps to ascertain her consent.

[58] Accordingly, on all of the evidence, I am satisfied that the Crown has proven all of the elements of the offence beyond a reasonable doubt and I find D.A. guilty of sexual assault.

Released: May 9, 2018

Signed: Justice M. Speyer