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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (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 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.

Court Information

Ontario Court of Justice

Date: November 1, 2019

Court File No.: Toronto Region 18-15003610

Between:

Her Majesty the Queen

— and —

Corey St. Denis

Before: Justice M. Block

Heard on: July 10, 11, 12, 15, 2019

Reasons for Judgment released on: November 1, 2019

Counsel:

• A. Leggett — counsel for the Crown
• J. Erickson — counsel for the defendant Corey St. Denis

Overview

[1] On April 14, 2018 the complainant, JL, attended the Mississauga home of her friend, VW. Another friend, HS, was also present. While the three young women relaxed, VW made an assignation with a woman named "Cody" on Tinder. Cody also had friends over and suggested that VW bring her friends with her that evening to an Airbnb apartment she was renting in the Liberty Village area of Toronto. That is how JL came to meet Corey St. Denis, the defendant before the court.

[2] Mr St. Denis is charged with the sexual assault of JL. He did not testify. He called no evidence. JL, VW and HS were the sole witnesses at trial. His counsel does not challenge the evidence that Mr St. Denis had sexual contact with JL. He contends that the crown has not proven beyond reasonable doubt that the defendant had sexual contact with JL without her consent.

The Testimony of JL

[3] Sometime after 9:00 PM on the evening of April 14, 2018, the three young women were driven to Cody's apartment in Toronto by a male friend. Cody came down to the lobby to bring them upstairs. In her apartment the arrivals met the defendant and another young man.

[4] With the addition of JL and her friends there were seven people in the apartment. They gathered around the coffee table and began drinking, talking and listening to music over several hours. They played a game called "cards against humanity". JL said she had little memory of the conversation due its lack of significance and to her subsequent efforts to forget the night's events. It must be noted that she had a detailed recall of the apartment layout, her stated alcohol consumption and her description of others present, particularly the defendant and his tattoos.

[5] The complainant noticed a number of syringes around the coffee table. The syringes were filled with a dark brown substance.

[6] According to JL there was a lot of cocaine around the table. She observed the defendant using it "a countless amount of times. It was . . . alarming frequent". The defendant appeared to be highly impaired. JL testified that later that night she was told by Cody not to complain of her own condition in front of the defendant as he was feeling sick from his alcohol and drug consumption.

[7] JL had her first drink, a tall can of vodka soda, around 10:15 PM. Sometime later, she had a glass of wine, which was refilled by Cody when she had consumed about half the contents. She believed she consumed another vodka soda. She may have had "a shot" of an unstated, but presumably alcoholic beverage. She allowed that this might be "a false memory". About midnight she was feeling dizzy, sick and intoxicated. She "was mostly in her own head". Her vision was affected. JL professed that she paid little attention to the people around her though at one point she made "ninja star" origami with HS.

[8] According to JL, HS didn't drink as much alcohol as she did. The complainant started drinking from a jug of orange juice in the hope that it would sober her up and make her feel better. The complainant attempted several times to tell the court that she had been told by others that something had been added to the orange juice. She persisted even after the court attempted to limit her evidence to events she had personally witnessed. Ultimately, in examination in chief she testified that the orange juice tasted sour and she felt worse after drinking it. She then testified that as a result of some communication, she switched to water and made a determined effort not to throw up.

[9] It is common for lay witnesses in criminal trials to attempt to communicate hearsay. In general, this is of no significance. However, the complainant's behavior during this episode reinforced my observation that JL was a forceful, intelligent, and adroit witness.

[10] Crown counsel asked LJ whether she had told the investigators about the orange juice in her original video statement. JL replied that she had not. She testified that she must have forgotten and on re-watching her video shortly before trial corrected this omission as she thought the episode important.

[11] At this point JL told VW and HS that she was feeling kind of sick. Soon after, the three young women and their male driver left the Airbnb. They returned to VW's home. JL and HS had a nap. Some time later VW woke the complainant up. Cody had texted VW several times. Cody and her friends wanted VW, HS and JL to return. Cody would pay for the Uber ride. According to the complainant, there was "a real sense of urgency" as VW and HS begged her to return to Cody's. They disregarded her protests and her obvious discomfort. JL either told, or tried to tell, her friends that she was far too sick to return. JL insisted she didn't want to go but eventually submitted. She remembered nothing about the drive back to Cody's or the elevator ride to the 15th floor.

[12] They arrived back at Cody's apartment about 5:30 AM. JL told the court that she just wanted to lie down and go to sleep. She recalled VW asking on her behalf if there was a place for her to go. As a result, she was led into a bedroom with the defendant and HS. It was suggested that she would be more comfortable if she removed her jeans. Both she and HS removed their jeans and got into the double bed along with the defendant. He occupied the middle, HS the outside nearest a window and JL got onto the other side of the bed nearest the ensuite bathroom. JL wore underpants, a bra and a t-shirt. She testified that she did not recall what the defendant wore to bed. She lay on her right side facing the defendant. She drifted off to sleep.

[13] In her testimony she described waking to "shaking, to the feeling of . . . of my crotch being aggressively grabbed and shaken and . . . and pulled at, and tugged at. And I don't remember much, but I . . . I remember . . . I remember his . . . fingers going like in . . . inside and into my vagina. And then I . . . I remember him rolling over towards me and grabbing onto me and . . . and putting his penis into my vagina, and after that I don't remember anything else."

[14] On her account at trial JL was asleep when the defendant began to sexually touch her, and she fell back asleep during sexual intercourse. She had no memory of her underwear being removed, it was still on when she woke up. She had no memory of anything said at any time during the sexual acts. She described herself as "mostly confused through all of it. I wasn't sure if I was dreaming, I wasn't sure if what was happening to me was real, I wasn't . . . I don't know, I was just processing. I didn't really have a lot of control over my own body". JL said she had a total of four to five drinks prior the assault. She seemed to have difficulty recalling if the defendant ejaculated and no idea where he might have done so.

[15] In her contemporaneous video interview with police, JL respond to a question by the investigator regarding whether she wanted to have sex with the defendant: "I don't know, I wasn't sober enough to be in my right mind to think of anything"

[16] JL recalled that HS was in the bed with her and the defendant when the sexual activity happened but was no longer there when she woke. As examination in chief continued on this point, she reviewed her position and declared that HS may or may not have been present.

[17] JL testified that she did not consent to the sexual touching or the sexual intercourse, nor did she ever express consent to the defendant. While not explicitly stated, on the evidence of JL she was incapable of expressing consent when the defendant began the sexual contact.

[18] The next memory of JL was of being woken by HS. She was still lying on the bed. Prior to this she had no memory of getting out of the bed. She was feeling very weak, disoriented, hung over, had a very upset stomach and her head was pounding. The defendant got out of bed as well. JL and the defendant had no conversation prior to JL leaving the apartment.

[19] JL testified that prior to leaving the apartment, VW asked her if anything had happened between her and the defendant. JL denied it because she knew that HS was attracted to the defendant. She didn't want HS to become upset with her "because of something that was out of my control that I didn't want to happen".

[20] JL told VW later that day that the sexual contact with the defendant was non-consensual. JL tried without success to contact Cody to determine whether the defendant had a sexually transmitted disease. She disclosed the alleged assault to the police on April 17, 2018.

[21] Defence counsel cross-examined JL in respect of the elevator video of the 5:23 AM return to Cody's apartment as well as the elevator video of the final departure from the apartment at 9:06 AM.

[22] In the 5:23 AM video, JL smiled in response to a light-hearted comment by HS. She manipulated her mobile phone. She adjusted her hair. She walked normally when she entered and left the elevator. JL agreed with these observations when they were put to her by counsel. She had a good memory of the elevator ride. She was able to correct counsel in respect of her location in the elevator at the time she smiled. She recalled opening an app when she manipulated her mobile phone. I conclude that she stood normally and was alert and responsive to her surroundings and companions. She displayed no indicia of impairment.

[23] JL entered and exited the elevator normally in the 9:06 video. She manipulated an app on her phone. She recalled that she was using her phone to call Uber. She stood normally and was both alert and responsive to her surroundings and companions. She agreed with these observations when they were suggested to her by counsel. Her memory of this episode 15 months after the event was excellent. She appeared unimpaired to me. She testified that she knew that HS had a sexual interest in the defendant and agreed that HS appeared to be upset in the elevator.

[24] Defence Counsel engaged JL on her alleged intoxication. In examination in chief, she had told the court that she was much more intoxicated than normal before the assault. JL agreed that, in her video statement given shortly after these events, she told police that she had drunk a typical amount of alcohol for her at the time. She told not told police that her head was pounding, or that she felt disoriented and weak. JL initially told investigators, in answer to a direct and specific question, that she awoke during the act of penetration. Later in that interview she told investigators that she awoke when the defendant touched her private area with his hand. In re-examination she gave, as a reason for the discrepancy, the explanation that she wanted to avoid giving "too many gruesome details" of the incident. She did not tell the police that removing her jeans came as the result of the suggestion of someone else.

[25] Under cross examination JL admitted a significant number of omissions from her initial video-taped statement to the police in April 2018 that later emerged as assertions in her evidence and/or in her interview with the crown a few days before trial. She testified that she understood that the investigators needed a complete and accurate account in the initial video-taped interview.

[26] JL didn't tell the police of any syringes filled with brown fluid during her statement to the police. Nor did she tell them of any cocaine used or present at the apartment. She didn't tell the police of Cody's warning not to speak of her own discomfort in front of the defendant because his drug consumption had made him ill. She didn't tell police about the spiked orange juice despite being specifically asked about her alcohol consumption at the initial police interview.

[27] JL never told the police about any consumption of drugs or alcohol by the defendant in her video-taped statement to the police.

[28] Defence Counsel suggested that JL consensually spooned with the defendant and fondled him while HS was in bed with them, that HS angrily told them that she knew what they were doing, and that the defendant and JL then got out of the bed, went to the ensuite washroom together, turned on the water and had consensual sexual intercourse. JL admitted to telling the police that she had spooned with the defendant, but adamantly denied the other suggestions.

[29] In examination in chief JL testified that she was aware earlier in the evening that HS was interested sexually in the defendant. In cross examination she maintained that she was unaware of the reason why HS was upset on leaving Cody's apartment the second time.

[30] In re-examination JL was directed to the orange juice drunk at the end of her alcohol consumption. The orange juice episode proved to be a bizarre component of the complainant's evidence. As we will recall, no mention of the orange juice was made in the complainant's initial statement to the police. In the examination in chief, she exerted herself to relay 2nd hand information that the orange juice had been adulterated. In cross examination JL agreed that she had drunk the orange juice without realizing that it had been spiked. In re-examination, JL told the court that she had poured vodka into the orange juice to mask the taste of the already adulterated beverage.

The Testimony of HS

[31] HS testified that she was very good friends with VW and on good, though not close, terms with JL at the time of these matters. Her narrative was substantially the same as JL until the first arrival at Cody's Airbnb on the evening of April 14, 2018. She thought that she mixed raspberry vodka with the orange juice. She was examined on her level of intoxication and that of her companions JL and VW. She described her condition as "all funned up", meaning drunk but not enough to affect her memory. She recalled that JL was in the same condition and that VW was sober.

[32] HS testified that the defendant was "pretty sober". She did not recall any drugs other than "a little bit of weed".

[33] When they left the Airbnb the first time JL was laughing and, like the witness, having a good time. After they returned to Mississauga, the three young women relaxed. VW received messages from Cody imploring the three to return. JL was tired and said she was a little ill but consented to return. By the time they returned to Cody's apartment, both HS and JL were essentially sober, in the words of HS "it's not like sober, like dead sober, but all of us were pretty sober at that point".

[34] Both HS and JL were both quite tired and went to lie down in a bedroom fairly quickly. While HS initially had no clear memory of their respective positions in bed, under cross examination she agreed that she was on the side of the bed nearest the fan and the complainant was nearest the ensuite washroom. She dismissed the suggestion that there might have been any conversation regarding what clothing should be worn to bed.

[35] At some point HS became aware the defendant joined them in bed. She was alerted because she felt shuffling movements in the bed. The shuffling went on for less than 20 minutes. HS thought that JL and the defendant were fondling and playing with each other. It is clear that HS thought that some form of sexual activity was taking place between Mr St. Denis and JL in the bed. It was also clear that she was distressed as she had anticipated a sexual assignation with the defendant. It was very clear that she was embarrassed by her close proximity to sexual activity that did not include her. After a period of time JL and the defendant left the bed and quietly walked together into the washroom. HS thought they may have been holding hands. She heard the toilet flush and the sound of the shower running as the two remained in the washroom behind a closed door for some time. She left the bed during this interlude to avoid awkwardness when the couple returned.

[36] HS went to the balcony as she was upset about her relationship with another young man and by her apparent sexual rejection by the defendant. VW came out of the other bedroom and comforted her. They fell asleep in the living room. Around dawn, several persons, including the defendant woke. He drank some orange juice. The household stirred as people prepared to leave. HS had no memory of waking JL. Normal goodbyes and social chit chat were exchanged as VW, HS and JL left and took an uber back to Mississauga.

[37] I accept the evidence of HS. I could find no reason to reject her evidence. While she was not currently friends with JL, she was not hostile to her. I was impressed with her apparent candour and fairness to both counsel during her testimony. She readily accepted that her memory of some of the minor features of the night had been worn by the passage of time. She readily acknowledged that her discomfiture that night had been triggered by the fact that JL, and not she, had sexual relations with the defendant. She contradicted JL on her alleged intoxication and incapacity. She saw no cocaine or syringes filled with mysterious brown fluid. Most important, her evidence of the defendant and JL walking hand-in-hand into the ensuite bathroom after a period of apparent fondling directly contradicts the evidence of the complainant on a central feature of the sexual assault complaint.

The Testimony of VW

[38] VW gave evidence that she usually drank little alcohol, and this night was no different. She contradicted the complainant in important particulars. VW recalled the consumption of no drugs that night. She recalled that the defendant was not noticeably impaired and that JL was in good condition when they left the Airbnb the first time.

[39] After the witness, JL and HS returned to Mississauga the first time. VW was texted by Cody and asked to return. The three young women discussed the prospect. VW told the court that JL was "really tired and wasn't feeling really well", but looked "okay". The three decided to return. On departing the Airbnb the final time, JL appeared tired and quiet. VW seemed to be well-disposed to JL. I could find no reason why she might adjust her evidence to favour the defendant, who was previously unknown to her.

Conclusion

[40] There can be no doubt that if JL was woken by sexual fondling or intercourse she was sexually assaulted. A sleeping or unconscious person cannot consent.

[41] It is not my intention to discuss here the multiple smaller contradictions and inconsistencies in the evidence of JL. Some, but by no means all, of these problems are captured earlier in these reasons. Considered in isolation some of these difficulties with her narrative could well find plausible explanations. Cumulatively, they cause me significant concern for the reliability of her evidence. As I've indicated, I found JL to be a nimble witness.

[42] More importantly, the evidence of JL is replete with major inconsistencies and troubling contradictions on central portions of her account. Her alleged physical incapacity and mental fog, caused by both intoxication and illness, is contradicted by the elevator video, by her superb and selective memory of much of the evening's activity and by the testimony of HS and VW. In my view she greatly exaggerated the physical and mental impact of her alcohol consumption and illness to support her account of being woken from her sleep by sexual assault and to explain the myriad inconsistencies and contradictions in her evidence.

[43] In my view her unsubstantiated account of the defendant's "alarming" consumption of cocaine in the common area of the apartment in full view of the other persons present, the uncorroborated story of the syringes containing brown fluid and the strange and ever-changing story of the spiked orange juice were intended to surround Mr St. Denis with an aura of criminality.

[44] The inconsistency between the complainant's versions of the beginning of the sexual assault is the least of the difficulties associated with her account. HS described the complainant and the defendant apparently fondling beside her in bed, then walking together into the washroom, closing the door and turning on water fixtures. This narrative was vehemently denied by the complainant. The evidence of HS strongly suggests that JL and the defendant participated in a consensual sexual episode that commenced in the double bed with HS present and then moved to a different and private venue.

[45] It would be, at very least, dangerous to rely on the evidence of JL. As her testimony contains the only evidence of non-consensual sexual activity, I am required to acquit Mr St. Denis of the charge before the court.

Released: November 1, 2019

Signed: Justice M. Block