WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) (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, 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) 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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. Andrews, 2019 ONCJ 59

DATE: 2019 02 06

COURT FILE No.: Central East Region 17-22359-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TREVOR ANDREWS

Before Justice Peter C. West

Evidence Heard on December 6 and 7, 2018

Oral Submissions Heard on December 7, 2018

Oral Reasons for Judgment released on February 6, 2019

Mr. F. Stephens .............................................................. counsel for the Crown

Mr. K. Mitchell-Gill .............................. counsel for the accused Trevor Andrews

WEST J.:

[1] The Information charging Trevor Andrews with sexual assault sets out an offence date of July 29, 2017. This date is incorrect having regard to the evidence led during Mr. Andrews’ trial. I raised this with counsel prior to reading my reasons for judgment and it was agreed the Information should be amended to conform to the evidence. It is my view from the totality of the evidence that the date as to when the alleged sexual assault occurred was July 28, 2017.

[2] Trevor Andrews is charged that on July 28, 2017, he sexually assaulted S.M. The Crown called the complainant, S.M. The defence called A.B. Mr. Andrews did not testify.

[3] The sole issue in this case is whether on the totality of the evidence called by the Crown and defence the Crown has proven beyond a reasonable doubt the sexual assault alleged by S.M. was committed by Trevor Andrews.

[4] As in any criminal case, Mr. Andrews is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[5] Mr. Andrews did not testify on these proceedings, which is his right. There was no onus on him to testify and he does not have to prove his innocence. The onus remains on the Crown to prove Trevor Andrews’ guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. Consequently, if after considering the totality of the evidence, I am sure Mr. Andrews touched S.M. for a sexual purpose without her consent then I will be satisfied of proof beyond a reasonable doubt. If, after considering all of the evidence or the absence of evidence, I am not sure that Mr. Andrews touched S.M. for a sexual purpose without her consent then I must acquit Mr. Andrews.

[6] S.M. and Trevor Andrew dated as boyfriend and girlfriend for approximately three years and according to S.M. their relationship went from platonic, to friends with benefits and to what she called a romantic relationship. On July 28, 2017, they were not living together. In S.M.’s evidence she referred to the date the incident occurred as being a Friday, when she was not working. The text messages entered by the defence were from Friday July 28, 2017.

[7] S.M. initially testified she did not expect to see Mr. Andrews on July 28, when he showed up unexpectedly at her apartment door, between 7 and 8 pm. She told the Crown she absolutely did not have any communication with Trevor before he knocked on her door. Earlier that day a young man, A.B., aged 17 or 18, called S.M. and told her his mom had kicked him out of their house, he had nowhere to go, he was very upset and crying. S.M. told him he should come to her apartment right away. She told him he could stay with her for a couple of days until he sorted things out.

[8] In cross-examination a series of text messages, Exhibit 1, were shown to S.M., which indicated S.M. and Mr. Andrews had texted each other on numerous occasions on July 28. The texts started at 10:41 am, when S.M. asked Mr. Andrews if he wanted to hang out that evening. Immediately after this text she sent him some topless photos of herself. Mr. Andrews texted her back around 12:26 pm, and said this could work but he was crazy busy at work that day.

[9] Mr. Andrews advised he wanted to get some beer and at 4:42 pm, S.M. suggested she could come to his place and do some laundry and then go with him to get the beer. Mr. Andrews told her it did not work that way. He was going to get the beer and then drop by her place. S.M. then advised Mr. Andrews she needed to talk to him about a “sticky situation” as A.B. had called her and had come to her apartment to stay for a couple of days because A.B.’s mother kicked him out and if he could not stay with her, he would have to go to a shelter, which she did not want him to do. S.M. had told Mr. Andrews she wanted to speak to him about A.B. to get his advice. S.M. then talked about being very hungry and Trevor told her to eat something.

[10] As a result of those text messages S.M. testified she realized she and Trevor must have made plans on July 28 to get together that evening. Her explanation for her earlier testimony was she must have forgotten as she had no recollection of the texts.

[11] Mr. Andrews did show up at the apartment and said he wanted to talk to S.M. outside so they went down to the alley and smoked some marihuana and talked about A.B. When they went back to the apartment S.M. said she was going to order pizza and Mr. Andrews told her they should pick it up because of the delivery charges. S.M. was upset with Trevor because he was asking A.B. a lot of questions, which she believed were patronizing and rude toward A.B. She and Trevor argued about the pizza and S.M. finally agreed they would pick it up. S.M. was also upset with Mr. Andrews as he was being critical of her decisions respecting financial issues, ordering the pizza to be delivered and A.B. staying with her.

[12] S.M. was also upset with Trevor because he was intoxicated. He had been drinking at the Village Inn before he came to her apartment and continued to drink beer in her apartment. He had three beers before they left to get the pizza. They picked up the pizza and came back to the apartment. S.M. gave herself and A.B. some pizza. Trevor got another beer.

[13] She and Trevor went outside again for a cigarette and Trevor was giving her a hard time about letting A.B. stay at her apartment, as she could not afford it. This angered S.M. because it was her decision. A.B. also came outside to smoke a cigarette with them.

[14] Several times during the evening, before going to bed, Trevor asked S.M. about their having sex. He told her they could be really quiet and A.B. would not hear anything. S.M. testified she told Trevor it was not going to happen, it wasn’t in the cards and if he did not like her answer he could leave. She testified she felt he was putting pressure on her to have sex. She told him each time they were outside they were not going to have sex, as she did not want to because A.B. would be in the living room. Trevor kept saying they would be really quiet. When they came back into the apartment she told Trevor she was exhausted as she had taken her night meds before they went to get the pizza. She wanted to go to sleep after she was finished in the bathroom.

[15] A.B. was watching a movie on his tablet sitting on the couch in the living room. She also told Trevor the beer he was drinking was his last when she went to the washroom. She then went outside for one last smoke and it was when she came back in she saw Trevor had a new can of beer opened in his hand. She said to Trevor, “Are you serious?” She told him to stop drinking the beer and pour it down the sink or he could leave and go home. She said it was time for lights out as she was going to bed to go to sleep.

[16] She got A.B. pillows and a blanket. Trevor poured what was left of the beer down the sink. She then turned out the lights and went to the bedroom and turned and said to Trevor, “Are you coming to bed?” He came in the bedroom behind her. He got undressed first to his boxers and she then took off her clothes with her back to Trevor putting on pajama bottoms and a t-shirt. Trevor wanted the outside of the double bed, which was against a wall but S.M. said no, she was going to sleep on the outside.

[17] Trevor became argumentative with her when she got into the bed. She turned on her right side and pulled her knees up to her chest and then within two minutes he was attempting to cuddle with her and spoon her. She pushed him away and said, “No.” He kept coming closer and she kept pushing him away. He was grabbing her breasts, very firmly. When she tried to push him away he would not let go. He put his hand on top of her vagina, not in or around but on top of her vagina and on top of her pajama pants, trying to convince her she wanted sex. She pretended to be asleep to get him to stop trying and he eventually stopped grabbing at her. She believed she must have fallen asleep, she did not know for how long, but at some point she felt pressure, like down by her stomach and her left leg and hip and in between her thighs. She woke up, opened her eyes and saw Trevor on top of her. She pushed him off of her, she saw the blankets were halfway down and her pajama bottoms were down by her knees. She had not pulled them down. She then sat up and pushed him hard with two hands and said, “What the fuck do you think you’re doing?” Her pajama bottoms had an elastic waistband.

[18] S.M. turned on the lights and Trevor looked at her with a “stare” and said, “What? What’s going on?” She told him to get out of the fucking bed, get dressed and get out. He kept asking what was wrong and she kept telling him to get out and leave. He kept saying to her, “Come on babe, you know you wanted it, it’s okay.” She testified she told him, “Are you fucking kidding me? Are you serious? This is not happening.” He kept saying, “Oh come on babe, you’re just stressed, you know you want it.” She said, “No.” Trevor kept coming towards her, saying the same thing so she slapped him across his face and said, “No, I didn’t want to have sex while I was sleeping.” She testified he looked “dumbfounded” and he said, “What the – what the hell is your problem?” He kept saying they had sex before and she had loved it. She told him she did but it wasn’t going to happen that night. S.M. pushed him out the bedroom door into the hall. Trevor kept saying to her, “You know you wanted it, our sex is great, you weren’t sleeping, you know you wanted it.” S.M. testified she was screaming for him to get the fuck out of her apartment. He said she was overreacting and was stressed out because of the kid.

[19] In the hallway S.M. agreed she grabbed Trevor and pinned against the wall by his neck. He started fighting with her and at this point she told A.B. who was standing in the living room to call the police. Trevor let go of her and S.M. threw his shoes down the stairs. Trevor followed down the stairs and S.M. locked the door. He banged on the door for a couple of minutes and then left.

[20] S.M. testified she walked into the living room and fell to the floor crying. A.B. had to help her onto the couch.

[21] S.M. agreed she contacted the police on July 30, 2017, to report Mr. Andrews. She did not provide a video-recorded statement on that date. PC Tracy Weightman made some notes in her police notebook as to what S.M. told her. There was no evidence as to whether S.M. was shown these notes, had them read back to her or whether she signed the officer’s notebook.

[22] She agreed A.B. came outside some of the times they went for a cigarette but she spoke to Mr. Andrews alone by pulling him aside. S.M. testified Mr. Andrews asked her about them having sex that night about six times and each time she said no, it was not going to happen. She agreed she got frustrated with Trevor because of his drinking.

[23] S.M. was asked about her nighttime meds and she indicated she took Baclofen, a muscle relaxant; Tecta for acid reflux; Gabapentin for nerve pain from fibromyalgia; two pills of Hydroxychlorquine for lupus; Cymbalta for anxiety and fibromyalgia; and Seroquel was her sleeping med.

[24] She denied hugging and kissing Mr. Andrews in the apartment with A.B. present but during cross-examination testified she may have hugged and kissed him when he first arrived but not all the time.

[25] S.M., as I indicated above, initially testified she and Mr. Andrews had no communication prior to him showing up at her apartment between 7 and 8 pm. In cross-examination she testified this was what she initially believed, she did not recall them texting each other. When she was shown Exhibit 1 and the text messages on July 28, she agreed they had in fact texted each other about getting together and later, before he arrived at her place, she had told him A.B. was staying with her.

[26] S.M. did not provide a video-taped statement to police until October 2, 2017, because PC Whelan, who interviewed her, was not able to interview her prior to that date. She agreed in her October 2 statement she told the officer she was not expecting Mr. Andrews to come to her apartment on July 28. The text messages certainly demonstrated she and Mr. Andrews were texting each other and there were plans for him to come over. S.M. maintained she had forgotten when she gave her statement about the texts and plans. S.M. testified it had been a year and a half since the incident and she did not remember the texts. She reviewed the October 2, 2017, video-taped statement before testifying on the trial to refresh her memory.

[27] It is my view having regard to the fact S.M. watched the video-taped statement just prior to testifying that she was repeating what she had told PC Whelan two months after the incident. I do not fully understand why another police officer was not able to interview S.M. earlier than two months after the date the sexual assault was alleged to have occurred. In my view this discrepancy in her evidence can be explained by the late interview and the incorrect information she told PC Whelan during the statement, which she then used a year and a half later to try to refresh her memory. I find this is not the type of inconsistency that seriously damaged S.M.’s credibility.

[28] S.M. also referenced her numerous medical issues that affect her memory in different ways. There were a number of occasions S.M. made reference to difficulties she had with her memory and on occasion she asked for a break in testifying so she could compose herself and calm down her anxiety. Prior to taking a break I observed S.M.’s demeanour on occasion became anxious, unfocused and somewhat scattered. When she returned from the recess she was certainly more composed, less anxious and more focused in her answers. In my view this did not adversely affect her credibility. S.M.’s evidence was internally consistent and when she was not anxious her answers were responsive to the questions asked, she was not evasive and she did not gratuitously embellish her evidence.

[29] It was suggested to S.M. the topless pictures she sent Mr. Andrews by text indicated she was hoping to have some sex with Mr. Andrews when they got together that evening. In my view her answer was directly responsive to this line of questioning and directly dealt with what has been viewed as one of the myths in sexual assault allegations.[^1] She responded:

I’m sorry, but when you are in a relationship, you can send pictures just to get someone to smile and to cheer up when they are having a rotten day. It does not automatically send out an invite for sex. I did not verbally ask him to come over for sex. I did not verbally – in those text messages written, did not ask him to come over to have sex, to bang me, to be intimate, to have any oral, or any cuddling time. Those are not in the text messages because I did not want that.

[30] The defence suggested to S.M. she had deliberately left out of her statement to PC Whelan her prior contact with Mr. Andrews to mislead the police, which S.M. denied. In my view the fact S.M. had been texting Mr. Andrews earlier in the day about the two of them hanging out together did not make it more or less likely she consented to have sex with Mr. Andrews that evening. In fact, a significant intervening event happened, which was that A.B. called her for help in the late afternoon of July 28 and this was stressing S.M., which she reflected in her texts. S.M. wanted to discuss with Mr. Andrews the “sticky situation” she had with A.B. now living in her apartment for a short time.

[31] One of the things that S.M. testified caused her to tell Mr. Andrews sex was not going to happen was Mr. Andrews’ level of intoxication. Another was the fact A.B. was sleeping on the couch in her living room. She also testified she did not like or appreciate how Trevor was talking to A.B.

[32] After Trevor left the apartment he started sending S.M. texts. At 11:43 pm, he sent a text, “All messages record on my ens, just so ya know.” Mr. Andrews also attached and resent the topless photo of S.M. with her left hand over her right breast with this text. S.M. responded, “Do it and I’ll have you charged…just so ya know!!!!” and “Ya no what you want to play this game then I can just go ahead and call the cops now.” The texts continued:

Andrews: “I have no reason to.” “I dont want to! Just in a bad mood maybe.”

S.M.: “You need to be in rehab or jail!”

Andrews: “Ummm ok n what do you need?”

S.M.: “Neither of those things.” “Bye”

Andrews: “Sleep well relax your just stressed.” “Bye babe your just stressin with the homeless kid.”

[33] S.M. took the first text by Mr. Andrews to be a threat by him to post the pictures she had sent him in the morning and send them to his buddies. She testified she was serious about going to the police concerning what he had done to her that evening.

[34] The next day, July 29, there was a text exchange where Mr. Andrews wanted S.M. to look at his finger because he had hurt it. S.M. was clearly indicating if he wanted her to look at it he had to do something for her. She told him she was shaking and crying and needed some weed to calm her down. If he wanted her to look at his finger then she wanted some weed. She later told him to bring her some cigarettes, milk and bread. She told him, “You need to make up for your actions.” S.M. testified she wanted Mr. Andrews to come forward, to take some responsibility, perhaps say sorry, and beg her not to call the police. Mr. Andrews refused. He replied, “No I don’t. You just think I do.”

[35] Finally S.M. texted Mr. Andrews:

S.M.: “How do like jail…bc I’m this close calling and giving them a statement about last night.” “So what do you think happened last night.” “Let me hear your side of the story.”

Andrews: “Oh babe your over doin it.”

S.M.: “I want to know what you think happened last night.”

[36] Again, S.M. testified she was giving him a chance to apologize, to hold himself accountable and take responsibility for his actions. Mr. Andrews did not respond to her question of what he thought happened the previous night. S.M. denied wanting to use the threat of her calling the police as leverage over Mr. Andrews to get him to give her weed, milk, smokes and bread.

[37] In my view the suggestion that S.M. would use the threat of going to the police over what he did to her the night before as leverage to get him to do things for her or give her things only makes sense if Mr. Andrews, in fact, did something to S.M. the night before. If he had done nothing the night before there would be no threat and no leverage. Further, it is my view this final exchange of texts on July 29, 2017, support S.M.’s evidence that Mr. Andrews touched her for a sexual purpose without her consent the previous evening.

[38] S.M. testified she wanted the outside of the bed because she was afraid Trevor was going to do something sexual to her, which she did not want. When she said was he coming to bed, she meant to sleep because she was exhausted. She had already taken her nighttime meds, which Trevor knew. S.M. testified she had made it clear to him she was not interested that night in having sex. On the evidence of S.M., this is not a case of honest but mistaken belief in consent by Mr. Andrews. The only evidence I have is S.M.’s evidence where she is telling him repeatedly she does not want to have sex with him when they go to bed.

[39] In cross-examination S.M. testified she did not want Trevor walking home because he was intoxicated. She still cared for his safety even though she was upset with him. This was why she was prepared to allow him to stay over and sleep with her in her bed.

[40] When she got into bed Mr. Andrews tried to spoon her and she told him to stop it. This was when Trevor became argumentative. This was when he was groping her breasts, her nipples, her stomach and her vagina. S.M. testified she wanted the outside of the bed as an avenue of escape. She felt pressure and when she woke up he was on top of her and her pajama bottoms were down at her knees. S.M. denied this was like the situation where Trevor was climbing over her to go to the washroom, he was on top of her for only one purpose, which was for a sexual purpose on his part. She accused him immediately after waking up of sexually assaulting her.

[41] S.M. agreed she testified in-chief Trevor looked “dumbfounded,” like what did he do wrong? He did not argue with her accusations of his sexually assaulting her. She told him to get dressed and to get the “fuck” out. She admitted to pushing him against the wall in the hallway and grabbing him by his neck. She was screaming at him. He did not want to leave. He kept saying, “Come on babe, you’re just stressed because A.B.’s here. You know you wanted it. You know our sex is good.” He was not apologizing, there was no remorse at all.

[42] She agreed she fell to the ground in the living room crying. She could not catch her breath and was distraught. A.B. helped her to the couch.

[43] The defence called A.B. who advised this was the first and only time he stayed in S.M.’s apartment. He came over and ended up staying overnight. At some point Trevor came to the apartment. He described talking to Mr. Andrews at the apartment and he testified Mr. Andrews was alright and was not aggressive or nasty towards him.

[44] He observed S.M. kissing and hugging Mr. Andrews in the apartment after Trevor came over, however, the frequency, when it occurred and the details of the kind of hugging and kissing were not pursued or brought out. Eventually she said she was tired and wanted to go to bed. According to A.B., Trevor was drinking a beer and S.M. kept saying, “Let’s go to sleep.” They both went into the bedroom after S.M. turned out the lights. 10-15 minutes later she came “back out into the living room freaking out, saying that he (Trevor) tried to sexually assault her.”

[45] A.B. did not overhear any conversations between Mr. Andrews and S.M. about whether they were going to have sex or not have sex that evening. The only comment about sex came from Trevor, when Trevor said to A.B.: “The only reason why he went there was to have sex with S.M.” On S.M.’s evidence there were a number of occasions she and Trevor were alone outside or she pulled away to speak to him privately and she told Mr. Andrews they were not going to have sex that evening.

[46] A.B. did not hear anything coming from the bedroom. S.M. opened the bedroom door and yelled at Trevor to grab his clothes and get out. They started to fight, kind of, she held him against the wall by his throat and then he ended up leaving. S.M. walked back into the living room and she fell crying. A.B. helped her up onto the couch and he hugged her for a minute, asked if she was alright. He then turned on his movie and they sat there and watched the movie together.

[47] A.B. was of the opinion Mr. Andrews was drunk – “You could tell.” He was slurring his words. Just before they went into the bedroom she was getting a little irritated with Mr. Andrews because he was sitting talking to A.B. and she just wanted to go to sleep.

[48] In cross-examination A.B. testified Trevor told A.B. he came there to have sex with S.M. He told A.B. this when S.M. had gone to the washroom. This was said by Trevor about 20 minutes before they went into the bedroom to go to sleep.

[49] In my view A.B.’s evidence in several key respects completely supported and corroborated S.M.’s evidence. First, Mr. Andrews told A.B. he had one purpose in coming over to S.M.’s apartment and it was to have sex with her. Trevor told this to A.B. when S.M. went to the washroom just before she said it was going to be lights out. S.M. testified she had repeatedly told Mr. Andrews she did not want to have sex with him that night despite Mr. Andrews on numerous occasions telling her he wanted them to engage in sexual activity when they went to bed. I find this was Mr. Andrews’ intent and purpose in coming to S.M.’s apartment. A.B. also supports S.M. saying she was tired and wanted to go to bed to sleep.

[50] After 10 or 15 minutes after going into the bedroom the door was opened, according to A.B., S.M. was freaking out and saying Trevor had tried to sexually assault her. Further, she was ordering Trevor out of her apartment, for him to get dressed and to leave. In my view this corroborates S.M.’s evidence. It does not make sense that Mr. Andrews would all of a sudden have to go to the bathroom and have to crawl over S.M. only 10 to 15 minutes after the lights went out. According to A.B. she had been saying she wanted to go to bed to sleep for 20 minutes. In fact, S.M. had gone to the bathroom. If Trevor needed to go to the bathroom there was plenty of time to go before the lights were turned out. The suggestion made by defence counsel to S.M. that possibly Trevor was just crawling over her to go to the bathroom does not accord with normal human experience. Further, this suggestion does not address the earlier conduct by Mr. Andrews when he was grabbing S.M.’s breasts and nipples and putting his hand over her vagina over her pajama bottoms trying to get her to agree to have sex with him and her repeatedly saying no and pushing him away. S.M.’s evidence of ultimately jumping out of bed and yelling at Mr. Andrews to get out of the apartment because he sexually assaulted her was confirmed by A.B., this was what he saw and heard S.M. do and say.

[51] Finally, A.B.’s evidence that Trevor told him he had come over for one purpose and that was to have sex with S.M. is powerful evidence of Mr. Andrews’ intent and purpose after he went to bed with S.M. Mr. Andrews stated purpose was consistent with what S.M. described Mr. Andrews doing: attempting to cuddle with her and spoon her, while squeezing her breasts and nipples and putting his hand over her vagina on top of her pajama bottoms and telling her she wants to have sex. According to S.M., Mr. Andrews was persistent in trying to get her to agree to have sex. She believed he had stopped until she fell briefly asleep and woke to him on top of her with the blankets pulled down and her pajama bottoms down to her knees.

[52] Considering the totality of the evidence, particularly with the corroborating evidence of A.B., it is my view the Crown has proven the allegation of sexual assault beyond a reasonable doubt. I found S.M.’s evidence to be internally consistent, other than her evidence that she was not expecting Mr. Andrews until he knocked on the door. I discussed this inconsistency earlier and it is my view this can be explained by the fact the police did not interview her by video-tape for over two months from the time of the sexual assault. Despite S.M.’s medical issues, which on occasion caused her anxiety and required her to request a recess to compose herself and calm down, I found her evidence to be clear, without embellishment and she answered the questions put to her without any evasiveness. She was fair in her answers, an example of which was when it was suggested it was a possibility Mr. Andrews could have been crawling over her to go to the bathroom and she agreed. However, I find that suggestion does not accord with human experience and does not explain the blankets being pulled down or her pajama bottoms being down to her knees. Further, it did not explain, as I indicated, the earlier conduct by Mr. Andrews when S.M. was awake and they had first gone to bed.

[53] When A.B.’s evidence is added to the totality of the evidence it is my view S.M.’s evidence was corroborated and supported in several key areas, which greatly enhanced S.M.’s credibility and reliability.

[54] As a result of my findings the Crown has proven the allegation of sexual assault beyond a reasonable doubt. To be clear as to the conduct I find has been proven beyond a reasonable doubt, it is my view the Crown has proven beyond a reasonable doubt Mr. Andrews squeezed S.M.’s breasts and nipples and put his hand on top of her vaginal area over top of her pajama bottoms when she first got into bed. I find she had told him repeatedly during the evening she did not want to engage in sex with him. She told Mr. Andrews when he attempted to spoon her and touched her for a sexual purpose for him to stop as she was not interested. I further find Mr. Andrews was attempting something more intrusive after S.M. fell asleep and he pulled down her pajama bottoms and was on top of her. In my view this was a further attempted sexual assault.

Released: February 6, 2019

Signed: Justice Peter C. West

[^1]: In fact, defence counsel attempted to refer to earlier text messages where Mr. Andrews and S.M. had engaged in explicit sex talk, which suggested they mutually wanted to have sexual intimacy, without having brought an application pursuant to s. 276. After argument, I ruled, even if a s. 276 application had been brought, the prior texts were only directed to the defence position because she had previously sent explicit sexual texts she was more likely on this occasion to have consented and wanted to have sexual activity that formed the subject matter of the charge or was less worthy of belief. I ruled the previous texts were not relevant to the issues in the charge before me as they related to the myths prohibited. R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.