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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Details

Date: January 9, 2024 Ontario Court of Justice Old City Hall – Toronto

Between: His Majesty The King — And — Daniel Gendron

For the Crown: M. Scott For the Defendant: D. Shoofey and J. Foy Heard: July 17 -19, 2023, October 20, 2023

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] Daniel Gendron is alleged to have committed a sexual assault on S.M. on May 17, 2021.

[2] The Crown proceeded by indictment and Mr. Gendron elected to be tried by a judge of the Ontario Court.

[3] Crown counsel, Ms. Scott, called one witness - the complainant, S.M. She also filed certain exhibits including a report from the Centre of Forensic Sciences, two agreed statements of fact, emails and texts, a voicemail message, and some photographs. Mr. Gendron elected to call no evidence.

[4] S.M. and Mr. Gendron were involved in a long-standing professional relationship involving Mr. Gendron paying for sex with S.M. Mr. Gendron lived in Montreal yet came to Toronto on business from time to time. Often when in Toronto Mr. Gendron and S.M. would arrange to get together.

[5] According to S.M., on May 17, 2021, the two met at a hotel room much as they often did. She recalls Mr. Gendron fixing her a drink shortly after they met in the room. She recalls beginning a sexual encounter yet, she has no memory of how it unfolded. Her next memory is of waking up on the bed several hours later.

[6] There is ample independent evidence that S.M. and Mr. Gendron had a sexual encounter that night.

[7] The Crown alleges that Mr. Gendron, knowing that S.M. was incapacitated and unable to consent, had sex with her. Ms. Scott further alleges, (although proof of this is not required to secure a conviction) that Mr. Gendron knowingly put something in her drink that incapacitated her.

[8] Ms. Scott’s alternative argument is that even if Mr. Gendron drugged S.M. such as to intoxicate her short of rendering her incapable of consenting, this administration of a stupefying substance vitiates S.M.’s consent.

[9] Counsel for Mr. Gendron argue that S.M. is neither a credible nor reliable witness whose testimony, even when considered with the meagre corroboration of the independent evidence, cannot support a conviction. Alternatively, they argue that even if the court accepts her testimony, the Crown has not proven beyond a reasonable doubt that S.M. was incapacitated and thus unable to consent when the sexual activity occurred.

[10] They also argue that even if the Crown succeeds in proving that Mr. Gendron drugged S.M. such as to intoxicate her short of rendering her incapable of consenting, this does not support a conviction for sexual assault.

[11] It is important to note that Mr. Gendron is not charged with offences under sections 245 and 246 which deal with the administration of a “noxious thing” or a “stupefying or overpowering drug”.

B. The Evidence

(a) S.M.’s testimony

[12] What follows is a review of what I find are the salient aspects of S.M.’s testimony.

[13] S.M. was 40 years old when she testified. She has no criminal record. She has had many careers. She practised nursing until 2010. She is now writing a book and has been self-employed selling sexual services since 2015 or 2016. She lives in Kitchener but works in Toronto.

[14] She and Mr. Gendron had met professionally on several occasions prior to May 17, 2021. Often, another woman was hired to join them for the occasion.

[15] On May 17, 2021, Mr. Gendron was to be attending a conference at the Omni King Edward Hotel. She booked her own room there for that night.

[16] On the evening in question, S.M. was under the care of a physician for depression. She was also bipolar and suffering from ADHD. Prior to meeting Mr. Gendron, she had ingested lithium, and two other mood stabilizers. She brought some high purity cocaine to the rendezvous to counteract the sedating effect of the mood stabilizers.

[17] She got to the room first and had one vodka drink. He arrived around 9:30 pm. They began to talk, and he asked her if she knew anything about GHB. She told him that it was a date drug that is hard to dose. She said it makes you horny and that strippers use it a lot.

[18] She went to pour him a drink, but he stopped her and said that he would make the drinks. She snorted some cocaine then took the drink he offered her and took two sips.

[19] The sexual activity started very soon thereafter, by 9:50 pm at the latest – much sooner than was usual for them. She was surprised that matters were progressing towards anal intercourse without her taking the usual preparatory steps and without any of the usual talk and foreplay that she and Mr. Gendron usually indulged in.

[20] She recalls putting a condom on his penis and him penetrating her anally. While she admits consenting to this at the time, as she put it, her intentions and her actions were “out of synch”.

[21] S.M.’s next memory is of waking up on the bed wearing a bathrobe shortly after midnight. Her underwear was near her head. Mr. Gendron was standing beside the bed with a disgusted look on his face. He was fully dressed and holding a condom inside an unopened package. He quickly left and never came back. According to her statement to police he left at 12:03 am. She adopted this as true.

[22] After he left, S.M. received a phone call from another sex-worker named Sia with whom S.M. had worked previously. Sia asked if S.M. was okay.

[23] According to S.M., after his arrival at the hotel room, and before the sex, Mr. Gendron had asked S.M. to reach out to Sia to see if she was available for that evening. Accordingly, between 9:40 pm and his departure shortly after midnight, S.M. exchanged many texts with Sia asking her to join them. Part of the text exchange involved Sia asking for “G”. Included in this set of texts was a picture of S.M. and a message from S.M. telling Sia “I want to fuck around with you.”

[24] After Mr. Gendron’s departure at 12:03 am and before 1:30 am, S.M. texted Sia telling her that she, S.M. was “a little drunk”. S.M. told Sia that Sia “is only four minutes away” and asks when she would be done. She also told Sia that she had reached out to get some GHB, but her contact had not come through.

[25] S.M. noted that 2/3 of the bottle of vodka she had purchased had been consumed. She denied having drunk anymore than one or two shots of the vodka. 95% of the cocaine was still there. She fell back asleep and woke up the next morning.

[26] S.M. snorted some of the remaining cocaine and then left the hotel and went to a medical appointment in Toronto before hiring an Uber to return to Kitchener. At 12:25 pm, while in the Uber, because she was concerned about her behaviour during their encounter and because she was concerned that she might not have pleased him, she sent an email to Mr. Gendron that read:

Hey D... I know u have a busy schedule. You don’t have to reply right away. Was everything okay with you? I don’t remember a lot of last night. I don’t even remember you leaving. Did we use protection? Did u cum? I apologize if I wasn’t together... Have a good day

[27] At 12:29 pm he replied:

Hi! Don’t worry, everything was perfect and safe

[28] After receiving this email S.M. suspecting that she might have been drugged, called a friend whom she considered a mentor and asked her if she thought that S.M. had been drugged the night before. The friend, who S.M. believed had psychic powers, told her that she had had a weird feeling the night before at around 10 pm which suggested to her friend that indeed S.M. was drugged. Because this friend had confirmed S.M.’s intuition in the past, S.M. began to firmly believe that she had been drugged and she redirected the Uber to a hospital in Kitchener.

[29] At 1:42 pm S.M. wrote back to Mr. Gendron:

You put GHB in my drink. You’re lucky I didn’t have seizures and die because of the meds I’m already on. Did your friend come in the room and rape me while I was passed out? I’m going to the hospital right now to get checked out. I know Sia probably hooked you up with that shit. Your life is over - I’m going to the cops

[30] At 2:26 pm he responded:

I have too much respect for you. You know I would never do that.

[31] He also left her a voicemail that said:

Yes, hi [S], it’s Daniel. Uhh, listen, I hope you’re joking, first of all, cause the evening went as planned and Sia obviously never showed up. I made sure you were you were fine, you had lots to drink and maybe a bit of coke. Uh uh but you were fine, you kissed me goodnight before I left in your [inaudible] robe and no GH was put in your drink trust me. Uhh and then you know me, I’m not the type of guy to do that and uhh I would never do that to you and I would never do that to you, so feel safe about that and just make sure to send me a note to reassure me. All right? Take care and be safe. Ciao.

[32] S.M. was examined at the hospital. While at the hospital S.M. texted Sia accusing her of theft and accusing her of having supplied Mr. Gendron with the GHB he had put in her drink.

[33] She gave a statement to police the next day.

(b) The salient aspects of the cross-examination of S.M.

[34] S.M. was questioned closely regarding the text messages exchanged with Sia that night.

[35] At first S.M. insisted that the picture of her was sent to Sia after Mr. Gendron had left. When confronted with the fact that the time stamp on the text messages makes it clear that the picture and associated text were sent before his departure S.M. responded to the effect that someone must have tampered with the data on her phone, which she said had happened to her before. She maintained this explanation over much of her cross-examination but eventually conceded that the photo was sent before Mr. Gendron’s departure.

[36] When asked why she continued to ask Sia to come after Mr. Gendron had left, she gave several responses. At first, she said that she didn’t know if he was coming back since he had not ejaculated. She later said that she knew he wasn’t coming back because he had ejaculated. Later in her cross-examination she said she did not know if he had ejaculated.

[37] When it was suggested that before the sex, she had a long exchange of texts with Sia asking her to come she denied this at first, insisting that all those texts were sent after Mr. Gendron’s departure. She later admitted that fact.

[38] She denied that her text to Sia asking when she would be done was an attempt to get her to come to the room.

(c) The scientific evidence

[39] Mr. Gendron’s DNA as well as S.M.’s DNA were discovered on one of three used condoms recovered by police from the room the next day. His DNA was also found on a swab taken from her breast and from a swab taken from her underwear.

[40] S.M.’s blood and urine were tested. There was evidence of recent cocaine ingestion, THC use, and Lamotrigine ingestion. Although no ethanol was detected in her blood or urine, cocaethylene was found in her urine. Cocaethylene is a metabolite of cocaine that is formed after the co-administration with alcohol.

[41] The following was admitted by the parties:

Gamma-hydroxybutyrate (GHB) is a central nervous system depressant. GHB is rapidly eliminated from the body and is not expected to be detectable in blood or urine by a toxicology analysis outside of 12 hours after administration. The blood sample was taken at 9:51pm on May 18, 2021. The urine sample was taken at 8:15pm on May 18, 2021.

C. Analysis

(a) The inescapable findings of fact

[42] Before addressing the thorny issue of S.M.’s credibility and reliability concerning the critical issues, there are several aspects of her testimony that are amply supported by other evidence.

[43] There is no doubt, and I find as fact the following.

[44] As S.M. testified, she and Mr. Gendron had a long-term relationship such as she described it.

[45] S.M. and Mr. Gendron did meet in the Omni hotel room on the night in question. As suggested by the number of condoms found, they had a significant amount of sexual activity, including anal sex. Cocaine was ingested by S.M. [1]

[46] S.M. also ingested prescription mood stabilizers, alcohol, and cannabis on the evening in question.

(b) What must the Crown prove?

[47] While generally proof of sexual assault requires proof beyond a reasonable doubt of several facts, in this particular case the issues boil down to these: has the Crown proven beyond a reasonable doubt that either (a) S.M. withdrew her consent to any of the sexual activity after the start of the period of her memory loss or (b) S.M. was unconscious or otherwise incapable of consenting to any of the sexual activity that took place during the period of memory loss.

[48] Ms. Scott’s alternative theory, i.e., that Mr. Gendron drugged S.M. thus rendering her intoxicated short of being incapable of consenting, assuming it does lead to a conviction, requires the Crown to prove the drugging beyond a reasonable doubt.

[49] S.M. did not testify that she ever withdrew her initial consent to the sexual activity. Her testimony was that she did consent to the onset of sexual activity but has absolutely no recollection of what occurred thereafter. Even if the court accepts this testimony, it does not prove that S.M. withdrew her consent.

[50] Central to the resolution of the two remaining questions are the credibility and reliability of S.M.’s testimony.

(c) S.M.’s credibility and reliability

[51] I am not convinced by S.M.’s testimony where it is not corroborated by independent evidence. Her answers to many questions were not responsive. She seemed intent on conveying information that was not requested of her. Her insistence that her phone had been tampered with showed an unusual degree of obstinance. I suspect that she stubbornly resisted the easiest and simplest explanation for the timing of her texts to and from Sia because she was more interested in supporting her version of events than she was in following the rules of logic and common sense.

[52] The inconsistencies surrounding the circumstances of Mr. Gendron’s departure further undermine my confidence in her testimony, as does her professed belief that her friend has psychic abilities.

[53] Proof of the offence is contingent on acceptance of S.M.’s testimony as to what occurred in the hotel room that night. Minor aspects of her testimony are corroborated but those aspects of her testimony that are critical to proof of the offence beyond a reasonable doubt are not.

D. Conclusion

[54] Having not accepted the critical portions of S.M.’s testimony I dismiss the charge.

[55] As set out above, there are two other routes to criminal liability that were very ably argued by counsel.

[56] As concerns the first issue, i.e., does S.M.’s testimony, if accepted, lead to a finding beyond a reasonable doubt that Mr. Gendron had sex with S.M. knowing she was either unconscious or incapable of consenting, having not accepted S.M.’s testimony I consider this question to be academic and thus not necessary to decide. [2]

[57] Likewise, I decline to resolve the question as to whether, if I were convinced beyond a reasonable doubt that Mr. Gendron surreptitiously drugged S.M., would he be guilty of sexual assault even if she were capable of consenting. This question is also academic since I have not accepted the portions of S.M.’s testimony that would be the foundation of such a finding.

Released on January 9, 2024 Justice Russell Silverstein

Footnotes

[1] Traces of cocaine, fecal matter, and some of S.M.’s accoutrements of anal sex were found by police in the hotel room the next day.

[2] A directed verdict application was brought in this case. I dismissed it on August 1, 2023, ruling that there was some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. Given the result of this trial there is no need to expand on those reasons here.