DATE: November 14, 2023 ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — G. P.

For the Crown: A. Gibbons For the Defendant: D. Goodman Heard: April 27-28, August 22, 2023

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] G.P. is accused of sexually assaulting E.C. on or about December 31, 2021.

[2] The sexual assault is alleged to have occurred at a New Years Eve party at the home of D.T., at which G.P. and E.C. were guests, along with a few others.

[3] According to E.C., shortly before midnight, without her consent, G.P. inserted his right hand down the back of her jeans, and digitally penetrated her vagina.

[4] The Crown called E.C. and D.T. as witnesses. G.P. testified and denied the alleged sexual assault. He called no further evidence.

[5] An audio-visual recording produced by a recording device inside D.T.’s apartment was made an exhibit.

B. THE EVIDENCE

(a) E.C.’s testimony

[6] E.C. testified remotely from the United Kingdom. She is 30 years old and has a B.A. from the University of Western Ontario.

[7] In December of 2021 she was living in Toronto, and on New Years Eve she attended a small get-together at the apartment of her closest friend, and former boyfriend, D.T. She arrived at around 9 pm. She had not consumed any alcohol before arriving at the party.

[8] E.C. knew everyone at the party initially. D.T.’s then current girlfriend, Meghan, whom E.C. did not know, arrived at the party somewhat later than everyone else.

[9] Between 9 pm and midnight E.C. consumed a few shots of vodka and some Champagne closer to midnight. As midnight approached, she was experiencing a “pleasant tipsy buzz”. She had not consumed any drugs.

[10] Shortly before midnight she and G.P. were standing side by side in the kitchen. She took two “selfies” of them which were entered into evidence. Immediately after the photos were taken, while other guests were on their way into the kitchen, G.P., who was standing to E.C.’s left, put his right hand down the back of her pants and inserted what felt like two fingers into her vagina. He moved them around inside her for a couple of seconds then withdrew them. G.P. had said nothing before doing this and E.C. did not consent to this touching. Nor had she done or said anything to encourage this touching.

[11] After the assault on her, E.C. just “froze” and “went on autopilot”. She began to drink excessively as she tried to cope with what had just occurred.

[12] As a result of what she drank after the assault, her ability to recall later events is impaired. She recalls no further interactions that night with G.P.

[13] E.C. left the party between 2:30 and 3:00 am. She was very drunk. She had caused a scene by being rude to D.T.’s girlfriend, Meghan, who had arrived at the party after the sexual assault. As a result of this behaviour, D.T. asked her to leave.

[14] She recalled being taken to the elevator by D.T. She was accompanied down the elevator by G.P. and another partygoer named Elena, although because she was so drunk, that morning she mistakenly believed it was D.T. with whom she rode the elevator.

[15] Once downstairs, E.C. began ranting to Elena about G.P.’s attitude towards women, although she does not recall if she said anything about the sexual assault. Just a few minutes later, after she got home, she spoke to D.T. on the phone and told him about the sexual assault. She did not think that he believed her.

[16] She called the police at around 4 am that morning (January 1) and gave a video statement on January 2, 2022. When asked by police why she had been ejected from the party she could not recall. Her memory of the events leading up to her eviction from the party was very impaired by her drunkenness.

(b) D.T.’s testimony

[17] D.T. is a 32-year-old advertising manager with CIBC. He has a degree from the University of Western Ontario.

[18] On December 31, 2021, he hosted a New Years Eve party for approximately 10 people. Throughout the party there was no opportunity for anyone to be alone with anyone else in the kitchen. Everyone was gathering in the kitchen as midnight approached.

[19] G.P., whom D.T. knew from university, and E.C., his former girlfriend and current close friend, were among the guests.

[20] There was quite a bit of heavy drinking by all the guests at the party leading up to midnight but that drinking subsided after midnight for most of the partygoers. D.T. was monitoring E.C.’s alcohol consumption because he was aware of a history of her drinking getting out of control. E.C. was very intoxicated around midnight. She became even more intoxicated after midnight. G.P. was also intoxicated towards the end of the party. D.T. was also intoxicated that evening but was “still aware”.

[21] D.T. asked E.C. to leave between 2 and 3 am because she was being rude to Meghan, his new girlfriend. He asked G.P. and Elena (another guest) to accompany her to her nearby condominium building because she was so drunk.

[22] Not long after G.P., Elena and E.C. left, D.T. went downstairs to look for G.P. Around the time of his leaving the condo unit he received a call from E.C., who was upset, and perhaps crying. She told him that G.P. had inserted his fingers into her vagina after sticking his hand or hands down her pants. She said she was going to file a report.

[23] D.T. encountered G.P. in the lobby either immediately after this call from E.C., or just as it was ending. He brought up the conversation he had just had with E.C. D.T. could not remember the exact words he used when he asked G.P. about “the sexual assault” but G.P. told D.T. that E.C. had forced his hand or hands down her pants. They both then returned to the condo unit.

[24] D.T. gave a statement to the police seven days later. He admitted that he was reluctant to do so because he was not confidant about the accuracy of his recollection of the details of his conversations with E.C. and G.P. Police asked him what exactly E.C. had told him, and he said “I guess” she said that G.P. had inserted his fingers in her vagina. He admitted at trial to not being certain of this.

(c) The video evidence

[25] D.T. had installed a fixed video camera inside the door to his apartment. It shows the vestibule quite well but only shows a very limited portion of the kitchen. It shows E.C. and G.P. standing near each other in the kitchen at the very place and time she testified that he stuck his hand down her pants, but it does not show the alleged assault although, because of the way the camera was positioned, the assault could have occurred without being captured on the video.

[26] The video does show E.C. falling back against the fridge at around 1:50:37 am. It shows G.P. sitting in a chair right beside her.

[27] I have reviewed the video several times and I find, as Mr. Gibbons suggests, that it shows G.P. putting his left hand between the back of her pants and her back. It also shows him patting her on the butt at 1:51:11 am.

(d) G.P.’s testimony

[28] G.P. is a 35-year-old dental surgeon living and practising in Sarnia, Ontario.

[29] G.P. attended D.T.’s New Years Eve party with his girlfriend, Elena. All 10 party guests, except for Elena, were friends from university. G.P. came to the party with a gift for E.C. They had been friends for years and were on good terms that night.

[30] G.P. began drinking upon his arrival at the party and continued to drink Champagne and vodka throughout the evening. He estimated that he had eight drinks over the course of the night. He professed to nonetheless having a good memory of the important events of the evening, though not for minor details.

[31] Shortly before midnight he and E.C. took a couple of selfies on her phone. As midnight approached the kitchen was crowded. E.C. was “very drunk”. G.P. described himself as “fairly buzzed”, as was D.T. All the partygoers were getting too drunk, and they all decided to slow down their drinking.

[32] A couple of hours after midnight, E.C. began to make a scene and “mouth off” at Meghan. She was asked to leave the party by D.T. who asked G.P. and Elena to accompany her home. E.C. was swaying and unable to walk on her own. When they got downstairs E.C. began to yell profanities. G.P. went to a bench near the elevator as Elena continued to assist E.C. out of the building.

[33] D.T. found G.P. on the bench and apologized to him for sending him off with E.C. He also asked G.P. if he was okay. G.P. recalled no mention by D.T. of any sexual assault allegations. G.P. never told D.T. that E.C. had forced him to put his hand or hands down her pants, nor did he ever do so. He explained that this was not something he would have forgotten and there was no point during the party where he could have done so undetected.

[34] G.P. was asked if his drunkenness would have had an impact on his ability to recall this conversation with D.T. He said that it would have had an impact but that he nonetheless recalled the entire conversation.

[35] He first heard about E.C.’s sexual assault allegation when he was charged.

[36] Mr. Gibbons suggested to G.P. on cross-examination that the video showed him putting a hand between her pants and her lower back at 1:50:37 and patting her butt at 1:51:11. He vehemently denied that the video depicted these gestures and denied having done so.

C. ISSUES AND ANALYSIS

(a) Introduction

[37] This case turns almost entirely on the credibility and reliability of the three witnesses: G.P., D.T. and E.C.

[38] Because G.P. testified and denied assaulting E.C., I must approach the evidence as follows: if I believe G.P.’s denial; I must of course find him not guilty. Even if I am not convinced by his testimony, it may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the criminal allegations beyond a reasonable doubt. If it does not, the accused must be acquitted. If it does, he must be found guilty. R. v. W.D., [1991] S.C.J. No. 26.

(b) Intoxication

[39] As concerns reliability, the most significant question raised is: what is the impact of intoxication on the reliability of the witnesses in this case?

[40] As is clear from common experience and the jurisprudence, intoxication is one of the “reasons why witnesses – who are forthright, acting in good faith and honestly doing their best to tell the truth during testimony – may not be reliable”. R. v. Kishayinew, 2019 SKCA 127 at para. 60 (cited with approval in R. v. Kishayinew, 2020 SCC 34 at para.1).

[41] While the evidence as to how much each protagonist had to drink that night is somewhat mixed, I conclude that all three were intoxicated at or around midnight. I further conclude that at the time of E.C.’s departure, she was extremely drunk, while both D.T. and G.P. were still moderately intoxicated.

[42] Because all three protagonists were intoxicated to some degree during critical events, I must approach their evidence with caution.

(c) The assessment of G.P.’s credibility

[43] I reject the testimony of G.P. as concerns the alleged sexual assault. I reject it because I do not believe him when he denies that the video shows him touching E.C.’s lower back and touching her on the butt shortly before 2 am. I find that the video clearly shows these two touchings and his denial of what is plain to see undermines the credibility of the rest of his testimony.

[44] I find that he purposely over-estimated the clarity and accuracy of his recollection of events that night. Even though he admitted that alcohol had impaired his memory that night, he nonetheless insisted that his recollection of his early morning discussion with D.T. was crystal clear and unfailingly accurate.

(d) The assessment of D.T.’s credibility

[45] D.T. is close friends with both E.C. and G.P. He has no reason to colour his recollections in favour of either of them. He was a credible witness.

[46] D.T. admitted that his recollection of the details of his discussions with E.C. and G.P. was not perfect. He further admitted that he was reluctant to speak to the police because of the imperfections in his recollection. Yet, he was confident enough in his recollection that G.P. had admitted to putting his hand or hands down E.C.’s pants to include it in his police account and in his trial testimony. He was frank with the court about the gaps in his recollection yet stood by this critical recollection.

[47] I do not use D.T.’s statement to the police as corroboration of his trial testimony, which would be an improper use of a prior consistent statement. R. v. Stirling, 2008 SCC 10, [2008] S.C.J. No. 10 at para. 5. Rather, I refer to it as rebutting Mr. Goodman’s suggestion that D.T. was not confident of the thrust of E.C.’s allegation when he spoke to the police.

[48] I accept D.T.’s assertion that G.P. admitted to D.T. that he put his hand or hands down E.C.’s pants. I reject any suggestion (advanced by no-one at trial) that E.C. forced him to do so.

(e) The assessment of E.C.’s credibility

[49] There are some manifest weaknesses in the critical portion of E.C.’s testimony that G.P. stuck his hand down the back of her pants and digitally penetrated her. While there is evidence that they were together at the place and time where she alleged this occurred, there is no video, eyewitness or medical corroboration of this allegation. Moreover, E.C. was intoxicated when she says it occurred.

[50] However, there is significant corroboration in G.P.’s admission to D.T. that he did indeed put his hand or hands down her pants. E.C.’s testimony is also strengthened by the fact that she and G.P. were friends at the time, making it less likely that she would fabricate such an allegation against him.

[51] I refer to E.C.’s prior consistent statement to D.T. not as corroboration of her trial testimony, but only as context for D.T.’s evidence about his discussion with G.P. R. v. Stirling, supra.

[52] Mr. Goodman argued that E.C. may have fabricated the allegation as a way of deflecting the other partygoers’ focus on her bad behaviour. In so far as any of E.C.’s cross-examination was aimed at making that point, it did not raise a reasonable possibility of such a motive being in play.

[53] I reject Mr. Goodman’s argument that because of the configuration of the apartment and the proximity of the partygoers, G.P. could not have stuck his hand down E.C.’s pants without being seen by others. I agree that G.P. ran a significant risk of being noticed, but the two selfies, the video, and the degree of drinking by the other partygoers support the notion that he could have done what is alleged without being noticed.

[54] E.C.’s testimony was delivered in a calm and measured manner. Her behaviour after the alleged incident strikes me as not inconsistent with the assault having in fact occurred. That she allowed G.P. to accompany her (with Elena) in the elevator, is meaningless, especially in the context of how drunk she was at that point in the evening.

[55] The details of the alleged sexual assault, i.e., digital penetration of her vagina, is not something E.C. was likely to confuse with some other event, notwithstanding her intoxication.

[56] I accept her testimony.

[57] It is important to note here that while I find that the 2 am touching that was captured on video did in fact occur, I do not rely on it as evidence that increases the likelihood that the earlier alleged sexual assault took place, and that G.P. committed it. Mr. Gibbons did not bring a similar act application and in the absence of such an application I believe that I cannot use that 2 am touching in that manner. Rather, my use of the 2 am touching is confined to its negative impact on G.P.’s credibility as described above.

D. CONCLUSION

[58] I find G.P. guilty as charged.

Released on November 14, 2023 Justice Russell Silverstein