W A R N I N G

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 subsection486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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 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 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 subsection486.4(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.B., 2021 ONCJ 368

DATE: 2021 07 08

File: 19-55004121

Toronto

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

D.B.

Before Justice G. Sparrow Heard on June 2 & 3, 2021

Reasons for Judgment released on July 8, 2021

M. Coristine.................................................................................counsel for the Crown

F. Roy ............................................................................... counsel for the accused D.B.

SPARROW J.:

[1] The accused stands charged with the following offences:

(1) Sexual assault of his wife L.B. on November 19, 2019;

(2) Assault of his wife L.B. with a weapon on December 14, 2019 and;

(3) Mischief, specifically damage to property on December 14, 2019

FACTS

[2] Certain facts regarding the first count are not in dispute. The complainant, L.B., had been married to the accused for 17 years at the time of the incident. They shared an apartment in the Etobicoke area of Toronto with their four children, ages 17, 12, 8 and 6 at the time of the incident.

[3] On December 14, 2019, the complainant went downtown to the entertainment district with her friend, C., at about 7 p.m., in order to socialize and visit a couple of bars. They planned to meet the complainant’s friend S.as well at the first bar, Grace O’Malley’s, at about 8 p.m. After about an hour and a half, the three went to a second bar,

NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start of this document. If the WARNING page(s) is (are) missing, please contact the court office.

Crocodile Rock. When they left, they encountered a few people in the street and left with them for a third bar. The complainant and C. left very quickly after arriving, called the accused, and arranged to have him pick them up and take them home.

[4] C. testified that the complainant had two ‘gummies’, or candies containing tetrahydrocannabinol, the active substance in marijuana, while en route; she also bought two rolled marijuana cigarettes on the street before arriving at the first bar. At the first bar the complainant had three glasses of red wine between approximately 8 and 9:30 p.m.

[5] The three arrived at Crocodile Rock at about 10 p.m., where she and the complainant had two glasses of wine upstairs; she and the two then went to a lower floor to dance. An unidentified man danced with the complainant for about half an hour; her friend S. yelled at her for kissing the man and reminded her that she was married. The two returned to the table and each had another drink. The man from the dance floor arrived and bought the complainant another drink, but left after S. yelled at him.

[6] C. testified that the complainant smoked a joint en route to the third bar; after arriving she ordered a drink but left it on the table and went to the washroom where she vomited. She said that the complainant looked ‘wobbly’. They went to the street where the complainant vomited before getting in the accused’s car; she also vomited in the car and outside the car when the accused pulled over.

[7] In cross examination C. agreed that the complainant was intoxicated at Crocodile Rock. She said that they each had a drink while dancing, and that in total the complainant consumed 7 or 8 drinks, 2 or 3 gummies and one marijuana cigarette. She said that on the way home the complainant apologized to the accused, leaned toward him and told him she loved him.

[8] The complainant, 42, testified that she and the accused, who also goes by the name ‘Joe’, had been fighting that day as he did not want her to go out. She asked a neighbour to watch her children when she left as Joe got home late.

[9] The complainant’s description of the events that evening was similar to the version given by C. She testified that she consumed three gummies before leaving the first bar, and three or four glasses of wine. She had one or two glasses of wine at Crocodile Rock, and the marijuana cigarette. She vomited at the third bar and wobbled to the street where she also vomited. She vomited ‘all over’ when she got in the car.

[10] The complainant could not remember how she got into the house, but once there the accused took her to their bedroom where she took off her vomit-covered clothes and lay on her side in her bra and panties. She could not recall if she washed herself or the accused washed her off.

[11] She testified that she then ‘blacked out’. She woke up to find that her underwear had been pulled down, and the accused was having sex with her. She said that she ‘guessed’ that he was finished, and assumed that he had ejaculated; she just remembered him ‘being inside there’. She said that she went back to sleep after being awake for only a few minutes.

[12] In describing her state of mind at the time she said that she was shocked, had completely blacked out, and went right back to sleep; that the next morning she was ‘a little confused as to what happened’ and that she was ‘not happy about it’. She also said ‘so I don’t feel that would have been something I would have consented to’ and ‘no way I would have said that would be ok’ and ‘no way I would come home and willingly want to do that.’ She also said it “was not a night to reconcile anything” as she was completely intoxicated.

[13] She testified that about a week later she told the accused that they had to talk about what happened that night; he asked if he was “in trouble”. She told him that she didn’t appreciate what he did, and that he said that he knew but that the matter was ‘swept under the rug”. She also said, ‘I think there was a non-consensual thing that happened.’

[14] The complainant testified that on December 14 she and the accused got into a fight about revealing photos on her phone that she had allegedly sent to a male friend in Calgary. When she headed for the bathtub, wearing only a towel, he grabbed the phone from her and nicked her left nipple in the process. She got the phone back and went into the bathroom; he got the phone back again, threw it at her and hit her in the sternum. He picked it up and hit it on the sink, causing the screen to break.

[15] The complainant identified a police photograph showing a red mark encircled by a bruise in between her breasts. She testified that the accused then left the home with the younger daughter; the older one called police. After charges were laid, he was ordered to remain out of the home.

[16] In cross examination the complainant testified that she and the accused took gummies regularly for pain and relaxation. She did not usually combine alcohol and gummies.

[17] When asked if the accused had ‘come down on her’ she said no, and that although he occasionally had erectile dysfunction it did not happen that night.

[18] She acknowledged that she and the accused had been fighting for a long time and had discussed separating. She acknowledged being concerned about custody issues, and that he was the primary caregiver as she works; however, she has been primary caregiver as well. She said that he was trying to force her to leave the apartment. She just wanted to have a good family Christmas and end things maturely. She acknowledged that Children’s Aid had been working with the family.

[19] The complainant denied vehemently that she had fabricated her version of the events in order to gain custody or force him to leave the home.

[20] The accused testified that the complainant called him at about 12:30 a.m. and said that she and C. needed to be picked up; she also texted him several times and said she did not feel well. He drove downtown, picked them up and drove home, dropping C. off en route. At one point he pulled over so that the complainant could vomit. He said that she hugged him and told him that she loved him all the way home.

[21] He testified that when they got into bed she started rubbing his thigh and penis, and that she wanted sex. He said that he could not get an erection or ejaculate because of significant medical problems, although he took cialis. He said that he performed oral sex on her.

[22] He testified that on the morning of December 14 he answered her phone and saw a picture of her in lingerie which had been sent to her friend in Calgary. She ripped the phone out of his hand and went into the bathroom. He left for his brother’s home with their younger daughter. While driving, the police called and asked him to return with the daughter as the complainant was worried.

[23] The accused acknowledged that they had discussed separating and that he had asked her to find another apartment in the building.

[24] In cross-examination the accused was shown the photo of the mark on the complainant’s chest. He said it looked like a bug bite. He acknowledged that the complainant was not feeling well on the night of the alleged sexual assault and had vomit on her clothes, but maintained that she initiated sex and said ‘fuck me’. He said that he got half an erection, which disappeared, and that he tried to penetrate her but couldn’t do so. No intercourse took place.

[25] He then said that she asked him to ‘go down on her’, which she did. He described her as awake and alert.

[26] In further cross examination the Crown played the accused’s recorded statement to po lice. The accused told the officers that the complainant was sick, lying on her back and throwing up when they got home. However, she was awake, ‘took the lead’ and told him what to do. He rubbed her back; she rolled over and went to sleep after about an hour. He also stated that ‘one thing led to another and we ended up having sex.’

[27] He also told police that a few days later, when she raised the subject of having sex that night, he told her that she had initiated it, did not say no, and he went along with it. She replied ‘ok’.

[28] He also acknowledged fighting over pictures on her phone the morning of December 14 but denied breaking it and said he did not know how it broke.

[29] When asked in cross-examination why he had told the police that they had sex, he said that he meant oral sex and that oral sex is now sex for him. He also said that ‘sex’ could mean a variety of activities. He agreed that it was important to be specific with police but said that he was in shock about being arrested and handcuffed.

ANALYSIS

[30] According to R. v. W (D) (1991)1991 93 (SCC), 1 SCR 742, in determining credibility the court must ask first if the accused’s evidence is accepted; if it is not accepted, but raises a reasonable doubt the accused must be acquitted.

[31] In my view, the accused’s evidence with regards to the alleged sexual assault cannot be accepted; nor does it raise a reasonable doubt.

[32] As the complainant stated, it is hard to believe that someone who was very intoxicated, has vomited multiple times in a bar, on the street and while in a car, had vomit on her clothes and was helped into bed would be able, or want to cuddle and engage in sexual activity for an hour before falling asleep.

[33] However, regardless of the questionable nature of that aspect of his testimony, the accused’s assertion that the complainant initiated sex by asking for him to ‘come down on her’ strains credulity. Again, it is hard to believe that a woman in the condition described above, wearing clothes covered in vomit, would make such a request.

[34] The credibility of his testimony, however, is undermined to the greatest extent by comparing his description of the events in bed to the police to his description in testimony. Oral sex, or a request for it, was never mentioned during the interview; the accused only said that one thing led to another and they had sex. As stated above, he told police that she took the lead and directed him – not, as stated in court, that she asked for oral sex and he complied. In my view these versions of events are so different that the court cannot find that his testimony raises a reasonable doubt.

[35] With regards to the alleged assault with a weapon, the court again finds that his testimony cannot be accepted and does not raise a reasonable doubt. The photo reveals a red mark surrounded by a large bruise – not evidence of a bug bite. He was angry that she had sent revealing pictures on her phone to another male, and there was admittedly an altercation involving the throwing or grabbing of the phone which supports the theory of assault. His evidence regarding the assault with a weapon, taken in the context of her testimony analyzed below, is not accepted and does not raise a reasonable doubt.

[36] In a nutshell, the Crown argues that despite a few memory gaps the complainant was straightforward and honest about her feelings, that she was clearly not in a state to initiate sex, and that her evidence regarding the sexual assault in total is credible and reliable. Her evidence regarding the assault with a weapon is corroborated by the photograph. Defence counsel submits that her evidence is not reliable due to her intoxicated state, which rendered her unable to perceive events, and that she had a motive to lie – getting the accused to move out of the home and getting custody of the children.

[37] In R. v. G.F., 2021 SCC 20, 2021 SCJ No. 20, the Supreme Court of Canada thoroughly reviews the law of capacity and consent in sexual assault cases, finding that they need not be considered sequentially. Karakatsanis, J. states at paragraph 51:

‘While a complainant logically must be capable of consenting before there can be a factual finding that they did consent, a trial judge may be faced with evidence that the complainant was incapable of consenting and also did not agree to the sexual activity in question, and a finding of either will establish a lack of subjective consent.’

[38] At paragraph 56, she refers to the case of R. v. J.A. 2011 SCC 28:

‘In J.A. this Court held that consenting requires that the complainant have ‘an operating mind’ at the time of the touching, capable of evaluating each sexual act and choosing whether or not to consent to it: paras. 36 and 43, 44. Thus, an unconscious complainant could not provide contemporaneous consent.’

[39] I agree with defence counsel that the complainant’s reliability is the most significant issue in determining whether her testimony raises a reasonable doubt with regard to the alleged sexual assault.

[40] In a lengthy article entitled ‘Doubt About Doubt; Coping With R. v. W.(D) and Credibility Assessment, Paciocco, J. lists issues which should be considered in determining reliability. Among them he lists “memory”, which may include “indications of alcohol blackout” and “internal inconsistencies that, by their nature, could reasonably be attributed to memory’.

[41] With regard to reliability, the complainant was clear in describing herself as intoxicated that evening. Her evidence that she had consumed seven drinks or more, three gummies containing T.H.C. and a marijuana cigarette was generally confirmed by her friend C.. She stated clearly that she blacked out when she went to bed, woke up to find her underwear pulled down, and that she “would not have consented”. As described at paragraph 51 of G.F., supra, this is a case in which an argument can be made that the complainant was incapable of consenting and did not do so.

[42] However, in my view, certain parts of her testimony quoted in the summary of it above give rise to concerns about reliability.

[43] The court is aware that a witness’s evidence may be considered both credible and reliable despite certain inconsistencies, and despite imprecise descriptions of certain events or perceptions or state of mind. Memory and phrasing in testimony are seldom perfect.

[44] Nevertheless the complainant’s statements that she was “a little confused’ as to what happened, she didn’t ‘feel it was something she would have consented to,’ and that she thought there was ‘a non-consensual thing that may have happened’ demonstrate some uncertainty as to whether she consented to having sex at some point. Despite extensive evidence of her intoxication that night, in view of this expression of some uncertainty about consent it is reasonably possible that she had a sufficiently operating mind to consent to even a brief sexual act and did so. Given that the incident occurred 19 months ago, it is also possible that the passage of time may have affected her memory.

[45] With regards to credibility, it is clear that the complainant and accused are likely to separate and that each may want their current apartment and child custody. However, no basis arose for a finding that the complainant fabricated testimony in order to gain an advantage in family court matters. She denied that suggestion, and only reported this incident to police as part of the initial complaint about the assault.

[46] It is clear from G.F., supra and J.A, supra that the Crown must prove beyond a reasonable doubt that the complainant was incapacitated to the point that she did not have an operating mind or that even if she had capacity she did not consent. The Crown’s case, based on the entirety of the complainant’s testimony has merit; however, the Court is simply left in a state of reasonable doubt on these issues, given the concerns about the reliability of crucial evidence, expressed above.

[47] The accused will be acquitted on the sexual assault charge.

[48] With respect to the assault with a weapon, the complainant was straightforward, consistent and credible. She maintained in chief and cross-examination that the accused hit her in the chest with her phone following a heated argument about pictures on the phone. The police photos showing a red mark and bruise corroborate her testimony. They were in a confined area. The accused’s testimony that the mark looks like a bug bite is speculative and inconsistent with the photograph.

[49] The accused will be found guilty on count two.

[50] With respect to the mischief charge, the complainant testified clearly that he broke the phone on the sink; however, she also said that it was tossed back and forth and fell during their altercation. The court has a reasonable doubt as to whether the accused intentionally caused the damage, and he will be acquitted on count three.

July 8, 2021

Signed: Justice Geraldine Sparrow