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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2020-01-14

Toronto

Between:

Her Majesty the Queen

— and —

F.J.

Before: Justice K. Caldwell

Heard on: March 22, 25, 26, November 27, 28, 2019

Reasons for Judgment released on: January 14, 2020

Counsel:

• Ms. Lisa Fineberg — counsel for the Crown
• Mr. Amedeo DiCarlo — counsel for the accused, F.J.

Judgment

K. Caldwell J.:

[1] Charge

[1] F.J. is charged with sexually assaulting an acquaintance, Ms. A.H., early one morning after a night they both spent at a club with a group of mutual friends.

[2] There were a number of people together at the club that night but the core group consisted of F.J., Ms. A.H., her then best friend, Ms. A.M., and two brothers, Mr. T.A. and Mr. T.V. As there is great similarity in the initials of various people, I am going to refer to Ms. A.M. as "the Best Friend", Mr. T.A. as Brother #1 and Mr. T.V. as Brother #2.

[3] In the early morning, the five friends took an Uber back to F.J.'s condo after they left the club. The Best Friend and Brother #2 headed to a bathroom/bedroom area shortly after that and remained there for much of the remaining time the group was together in the condo. F.J., Ms. A.H., and Brother #1 remained in the living room/kitchen area until F.J. and Ms. A.H. ended up in the condo's second bedroom. It is what happened in the bedroom and the events immediately preceding that are the subject matter of this charge.

F.J.'s and Ms. A.H.'s Evidence

[4] Ms. A.H. testified that she headed to one of the bedrooms to knock on the door to get the Best Friend's attention as she wanted to leave. She said that F.J. followed her to try to stop her. She said that he pushed her up against the sliding glass door leading to the second bedroom. The force of the push was enough to make her hit her head on the door. He then began trying to kiss her and she kept turning her head away to avoid him, saying "what are you doing, stop it!". He managed to slide the door open behind her and they ended up in the bedroom. At that point, he ripped her pants and underwear down to her knees; she was panicking and trying to pull them back up. At one point she got them up, but he pulled them back down. He then put his fingers in her vagina and pushed her back onto the bed. He was grabbing at her hair and body, trying to flip her over onto her stomach. She said she continued to fight him, saying "what the fuck are you doing?!". Finally she makes eye contact with him and said, "if you don't stop fucking touching me, I'm going to ruin your life!". He looked at her, laughed, and then grabbed her head to try to force it down in order to have her give him a blow job. She kept resisting but he overpowered her. Finally, she managed to get away from him and flee the room when he stopped to take his own pants down. She then exited the condo.

[5] F.J. gave a very different version. He testified that all was going well between them that night. He said that he, Brother #1 and Ms. A.H. were sitting in the living room, chatting. At some point, Ms. A.H. gets up and F.J. moves towards her. There is music playing; they begin dancing and hugging. They start French kissing and move towards the bedroom. He slides the door open, and they move into the bedroom. He wasn't forcing her in any way. They continue kissing and begin touching each other, hugging, kissing, spinning around. He pulls her pants down. He is adamant that her underwear remained on. His pants were still on. He puts his hand down to her vaginal area, and then says, "what is that smell??". He emphasized "smell" when he testified and was clearly referencing her vaginal area. He said at that moment, everything just "dropped", it ended. He moved back and Ms. A.H. gave him a "weird look", and said that she was going to get the Best Friend. Ms. A.H. left the bedroom and, shortly after that, he heard the bang of the main condo door. He then went into the living room, sat on the couch, and began playing video games. He said he was confused about what had just happened.

The Applicable Law

[6] This is a case that turns upon the application of the well-known Supreme Court of Canada decision, R. v. W.(D.):

First, if I believe the evidence of the accused, I must acquit;

Secondly, if I do not believe the testimony of the accused but I am left in a reasonable doubt by it, I must acquit;

Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[7] W.(D.) emphasizes the very high standard set by the beyond a reasonable doubt burden placed upon the Crown.

Analysis of the Evidence

[8] The Best Friend, Brother #1 and Brother #2, also all testified. The Best Friend was called by the Crown and the two men were called by the defense. I will not outline all of their evidence but will review the essential points as I proceed through my analysis of this case.

[9] Of course, none of these individuals can shed direct light on what occurred in the bedroom as only F.J. and Ms. A.H. were present.

[10] F.J.'s and Ms. A.H.'s accounts were very different yet I found both of them convincing. Ms. A.H. was very detailed in her account, it made internal sense, and there were little details that added to the credibility of her account. For example, her comment about telling F.J. that she was going to "fuck up" his life and his laughter in response, which clearly upset her, is the type of detail that I wouldn't expect in a fabricated account.

[11] On the other hand, the same can be said about F.J.'s testimony. I also found it to be very detailed and it had its own internal logic. He was also emphatic about certain details that added to his credibility – such as his insistence that he had pulled down her pants but not her underwear. The particular comment that he testified he made also adds to his credibility – it does not reflect well on him, would be extremely offensive to hear, and has a greater specificity than I would expect in a manufactured account.

[12] I turn, then, to the testimony of the other witnesses concerning the surrounding events that night and for ease of comprehension I will address the events in chronological order.

The Events at the Lost and Found Bar

[13] Frankly, I did not find that much turned on the various renditions of what took place in the bar that night. All of the witnesses commented on their views of the dynamics between Ms. A.H. and F.J. Ms. A.H., according to her testimony, had a friendly though not close relationship with F.J. and Brother #1. She made it very clear in her testimony that she disliked Brother #2. This antipathy seemed to be based on her perception that he was rude, and on his poor treatment of the Best Friend with whom he had once had a relationship of sorts.

[14] I don't find it necessary to make a finding on the dynamics between F.J. and Ms. A.H. in the bar. Ms. A.H. was adamant that she viewed F.J. simply as a friend and had no more interest in him than she did in any of the others present that night. Brother #2 was of the view that she was interested in F.J. and that she usually gravitated towards him when the group got together. Others had their own views on this subject. As I will outline in "The Events in the Elevator", different individuals can perceive the same interaction differently. I find it impossible to make a finding regarding those dynamics and don't find it necessary to do so to determine this case.

[15] I will comment on alcohol use, however. Ms. A.H. was adamant that she had three drinks that night, a rum and Coke at her apartment, two rum and Cokes at a pub she went to with the Best Friend around 11 pm., and then one drink when she arrived at the Lost and Found bar around midnight. She testified that she had nothing further to drink throughout the night, up to and including when they left the bar around 2 am and when she left the condo around 4 am. She didn't consume any drinks bought by the men.

[16] All four of the other witnesses describe a different drinking pattern, however. All four put Ms. A.H.'s intoxication at a higher level than she describes. The Best Friend viewed their intoxication levels as the same and she saw her own as very drunk or very tipsy. Further, there was reason for some attention to be paid to everyone's consumption. The booth that they had reserved required bottle service. The men ordered and paid for the alcohol, 750 ml bottles of Hennessy for themselves, bottles of Corona beer for the Best Friend and rum and Cokes for Ms. A.H. The Coronas and the rum and Cokes had to be ordered in batches of six each. All remember six Coronas being ordered and six rum and Cokes. I accept that Ms. A.H. may not have finished all six of the mixed drinks; however, I find it impossible to accept that she had none given both her level of intoxication as testified to by all of the other parties, and the fact that all four of the other witnesses testified that she consumed at least some of those drinks that night.

[17] I do not find her level of intoxication was at such a level that she would not remember the events of that night or that she wouldn't have control over her actions. I also do not draw any parallel between her level of alcohol consumption and any likelihood of consent to sexual activity. I find the divergence in the testimony over her consumption is a factor, however, that impacts her credibility. I find as a fact that she consumed more alcohol than she admitted in her testimony. With any witness, a conscious minimization of certain actions leaves the Court with concerns over the accuracy of other aspects of the witness's testimony.

The Events During the Uber Ride

[18] All of the witnesses testified that they shared an Uber from the bar to F.J.'s condo. All describe a six-seater minivan and they all place the driver and Brother #1 in the front seats, Brother #2 and the Best Friend in the middle bank of seats, with F.J. and Ms. A.H. in the back bank of seats.

[19] Ms. A.H. testified that there was no sexual contact between she and F.J. in the Uber. F.J. and Brother #2 testified that Ms. A.H. and F.J. were French kissing in the Uber. The Best Friend and Brother #1 did not see this occur though both testified that their attention was often elsewhere – scrolling through their phones – and thus they may not have noticed.

[20] I do not make a definitive finding on this issue though I am inclined to find that it did not happen.

[21] I did not find Brother #2's evidence to be particularly helpful in this case. He was absent during the crucial part of the evening – the events leading up to Ms. A.H. and F.J. ending up in the bedroom. It was clear that Ms. A.H. and Brother #2 didn't care for each other much. Further, I found he was protective of his friend. I was left with concerns regarding his credibility.

[22] I have a different view of the evidence of the Best Friend and that of Brother #1. The Best Friend and Brother #1 clearly had and continue to have a friendship with F.J. By all accounts, however, they both viewed themselves as having a friendship at the time with Ms. A.H. as well. My sense from the Best Friend's evidence is that she struggles to this day with the loss of her friendship with Ms. A.H.

[23] Brother #1 also does not seem to hold any negative feelings towards Ms. A.H., either now or at the time. Further all of the parties seem to view Brother #1 as the most sensitive and caring of the three men. His actions that night also backed up this perception. I found both the Best Friend and Brother #1 to be very credible witnesses. I make this finding regarding Brother #1 even though I am fully aware that he has a criminal record. I note that the record is very short, one entry, quite dated and did not relate to a crime of dishonesty. It is for Drive Over 80 mg. and he must have been barely 18 when he was arrested. As will become clearer further on in this judgment, Brother #1's evidence had a significant impact on the outcome of this trial.

[24] If Ms. A.H. and F.J. had been French kissing in the car, I would have expected Brother #1 and the Best Friend to see it. I appreciate that they were distracted at points but the car is a very confined space and it would only make sense that the friends would be chatting and turning to look at one another periodically.

[25] I don't find that much turns on it, however. Any kissing in the car doesn't shed light on whether later sexual activity was consensual or not. I appreciate that a definitive finding that it had not occurred would reflect negatively on both F.J.'s and Brother #2's credibility but I am simply left uncertain as to whether or not this happened.

[26] Ms. A.H. also testified that an unknown blonde female shared the back bank of seats with she and F.J. Everyone else testified that there was no blonde female. I find as a fact that there wasn't such a person in the Uber for two reasons. First, the group of friends seemed to have been quite insular that night so it is unlikely that someone else would have joined at the end of the evening. Further, it doesn't make much sense that she would join for the ride, and then just disappear when they reached the condo.

[27] I find, however, that nothing turns on this discrepancy. It is an accepted fact that memory, as a general rule, weakens with time. I find that Ms. A.H. is now of the genuine view that there was a sixth person in the car thus I don't find that her testimony on this point impacts her credibility – it is simply a neutral factor.

The Events in the Elevator

[28] A video was played showing the events in the elevator ride up to F.J.'s condo. F.J. draped himself over Ms. A.H.'s back and the two appeared to be in a clutch/dance of sorts during the ride. The video was introduced, I assume, to show part of the series of events that unfolded that night and the dynamic between F.J. and Ms. A.H. Ms. A.H. testified that she was trying to shrug F.J. off of her. F.J. testified that he perceived the interaction to be mutually enjoyable for them both.

[29] Having watched the video, I agree with Ms. A.H.'s testimony and find as a fact that she was trying to extricate herself from F.J.'s grasp. I also accept as a fact that F.J. misread the situation. This was an interaction that could be read differently by different people. Ms. A.H. appeared to be trying to shrug F.J. off but was doing it in a manner that I interpret as designed to create no offence.

[30] Regardless of the accuracy of my interpretation, the interaction is of little fact-finding value. Even if my interpretation is incorrect, and Ms. A.H. was welcoming the contact, this does not assist in determining if the subsequent actions were consensual.

The Events Preceding Entry into the Bedroom

[31] F.J., Ms. A.H. and Brother #1 all testified to the interactions prior to entry into the bedroom. I have outlined at the outset F.J.'s and Ms. A.H.'s versions. It is at this juncture that I find that the testimony of Brother #1 is particularly crucial in helping determine the outcome of this case.

[32] Brother #1 testified that he was sitting in the living room watching F.J. and Ms. A.H. in the kitchen. They were grabbing at one another, hugging face to face. F.J. would back up and Ms. A.H. would pull him towards her. He would do the same in turn. They began kissing and moving along the hallway towards the bedroom, with F.J. walking backward and Ms. A.H. walking forward. Ms. A.H.'s hands were around F.J.'s waist and F.J.'s hands were on Ms. A.H.'s shoulders. Brother #1 then stopped watching as he felt uncomfortable. Instead, he began scrolling through his phone. They were in the bedroom for seven or eight minutes and then he heard the condo door slam.

[33] I have already indicated that I find Brother #1 to be a very credible witness. As a result, I find his testimony about this portion of the evening to be very influential. I accept his evidence. The difficulty is that his evidence is diametrically opposed to that of Ms. A.H.

[34] I fully accept that the physical touching between Ms. A.H. and F.J. could have been consensual outside the bedroom and non-consensual once they were inside the bedroom. Consent at one point in the night does not mean that consent followed at another point in the night.

[35] The issue with the differing testimony is not one of consent. The issue is that Brother #1's evidence regarding this part of the evening is so opposed to that of Ms. A.H. that it leaves me with a doubt about Ms. A.H.'s testimony regarding what happened in the bedroom. I have also assessed Brother #1's evidence in light of my comments regarding the Elevator Incident – that two people can observe the same event in a very different fashion. The difficulty here is that the detail provided by Brother #1 is not detail that is subject to interpretation – it would be very difficult to misinterpret the actions of someone proactively pulling another person towards them. Further, the condo is very small and thus Brother #1 would have been in very close proximity as he watched their actions.

The Events after the Bedroom

[36] Brother #1 went out into the hallway and saw that Ms. A.H. was very upset. He tried to convince her to come back in and she refused, saying she wanted to leave. He then got the Best Friend. He said that Ms. A.H. was crying. He adamantly denied that she said, "that was really fucked up". He's sure he asked her what was wrong, and that she simply said she wanted to leave.

[37] The Best Friend also testified that Ms. A.H. was upset when they left. There is video footage showing Ms. A.H. and the Best Friend hugging in the condo lobby in a manner that suggests that the Best Friend is consoling Ms. A.H. The Best Friend testified that Ms. A.H. was crying on the way home but didn't talk about what happened and wasn't in the mood to talk once they got home. Ms. A.H. went into the bathroom and the Best Friend went to bed. At some point that night or the next morning she had a text exchange with F.J. I address that exchange below. She said that she and Ms. A.H. didn't talk for a couple of weeks after that night, and then ultimately their friendship ended in the summer. She assumed the reason it ended was that the Best Friend remained friends with Brother #2.

[38] I fully accept as a fact that Ms. A.H. was extremely upset at the end of the night. What I am left uncertain about is the source of that upset. The upset could flow from a non-consensual interaction in the bedroom. It also could flow from being on the receiving end of an extremely offensive and personal comment.

The Text Message

[39] This piece of evidence, taken alone, is strongly though not definitively indicative of F.J.'s guilt.

[40] After the two women left that night, there was a text exchange between F.J. and the Best Friend. The text reads as follows:

F.J.: luno, from what I remember we were just chilling & then yeah. Fuck! Sometimes a little more than aggressive when I'm drunk. Tell her I'm sorry. Also tell her if she's cool with it, let's go for dinner & don't worry I'll be sober.

The Best Friend: Yeah from what she told me it was pretty bad, not gunna lie. I tried to talk to her about it and she says she doesn't wanna to read or talk about anything, she doesn't like you. Idk if this ones Gunna be salvageable.

[41] F.J. testified that by "aggressive", he was talking about speech. He said he realized that his comments in the bedroom were very aggressive and offensive.

[42] Assessing this text at face value in isolation I find it strongly indicative of guilt. The term "aggressive", without more, generally would be used to describe physical acts, not style of language.

[43] Pieces of evidence are not viewed in isolation, however. They are viewed in the context of the evidence as a whole. F.J. has provided an explanation. I am not sure I am convinced by his explanation but, interestingly, if I had to use an adjective to describe F.J.'s verbal manner during his evidence, "aggressive" definitely jumps to mind. He bordered on being aggressive and confrontational with Ms. Fineberg, the Crown.

[44] Further, I have outlined my concerns regarding Ms. A.H.'s testimony above.

Conclusion

[45] This case turns on the burden of proof. I do not reject Ms. A.H.'s testimony and, when viewed in light of F.J.'s text, I lean towards accepting it. I also must factor in, however, my concerns about her testimony, F.J.'s own testimony and the testimony of Brother #1.

[46] The second branch of R. v. W.(D.) states that even if I do not accept the accused's evidence, if I am left with a reasonable doubt by it, I must acquit. I would not go so far as stating that I reject F.J.'s testimony but I am left with a reasonable doubt by it particularly when I assess it in light of the totality of the evidence in this case.

[47] As a result, I find F.J. not guilty.

Released: January 14, 2020

Signed: "Justice K. Caldwell"

Footnotes

[1] (1991), 63 C.C.C. (3d) 397

[2] Means "I don't know"

[3] The nickname the Best Friend used for F.J. has been redacted

[4] Also means "I don't know"