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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
DATE: 2025-01-20
COURT FILE No.: Pembroke 23-37100837
BETWEEN:
His Majesty the King
— AND —
J.P.
Before Justice J.R. Richardson
Heard on June 18; July 16; August 19, 28, 30, 2024
Oral Decision Rendered December 9, 2024
Reasons for Judgment released on January 20, 2025
Goher Irfan — counsel for the Crown
Adrian Cleaver — counsel for the accused
Introduction
[1] The accused is charged with:
a) Sexually Assaulting KJ on July 18, 2023;
b) Sexually Interfering with KJ on July 18, 2023;
c) Administering a Noxious Substance, Xanax, to KJ on July 18, 2023.
[2] The Crown elected to proceed by Indictment.
[3] The parties advised at the outset that the following issues were admitted:
a) Date;
b) Time;
c) Jurisdiction;
d) Identity;
e) The fact that JP and KJ had sexual intercourse on July 18, 2023;
f) The fact that KJ was 14 years of age on July 18, 2023;
g) The fact that JP was 31 years of age on July 18, 2023.
[4] The issues in this case are:
a) Whether the sexual intercourse was consensual;
b) If the sexual intercourse was not consensual, whether JP had an honest but mistaken belief in communicated consent;
c) If the sexual intercourse was consensual, whether KJ’s consent was vitiated by her intoxication;
d) If the sexual intercourse was consensual, or if I have a reasonable doubt that KJ did not consent, whether JP took all reasonable steps to ascertain KJ’s age before proceeding to have sexual intercourse with her;
e) Whether Xanax is a noxious substance;
f) If Xanax is a noxious substance, whether JP administered it to KJ.
[5] These issues require an assessment of the reliability and credibility of the witnesses.
[6] On December 9, 2024, I orally advised the parties that, for reasons to be delivered later, I was finding JP guilty of Sexual Assault and Sexual Interference, and finding him not guilty of Administering a Noxious Substance.
[7] These are those reasons.
[8] In this judgment,
a) KJ is the complainant.
b) JP is the accused.
c) CC is the mother of the complainant.
d) SW is the mother of the accused.
e) LP is a friend of the complainant who was at a party that the complainant and the accused were at, and later at the Pembroke Marina where both the complainant and the accused ended up after the party broke up.
f) NL is a friend of the complainant who was at the party that the complainant and the accused were at.
Evidence of KJ
In-Chief
[9] KJ was 15 years old when she testified. She turned 16 in September 2024.
[10] At the time of the incident, KJ was living with her mother CC and her older brother TJ on C Street in Pembroke. She also had a dog and two cats.
[11] With respect to her relationship with her mother, she stated that they argued a lot but “it was all right”.
[12] On July 17, 2024, she had an argument with her mom and then she left to go to a party. She estimated that she left at 8:30 pm and arrived at the party at about 9:00 pm. She walked to the party. She went by herself. The party was at the home of a person whose name she could not remember on Eganville Road in Pembroke. She did not have any other plan but to go to the party.
[13] KJ recalled that her argument with her mother was about her brother’s girlfriend. KJ did not like the girlfriend because she had “cheated” on her brother.
[14] Once at the party, KJ consumed some “hard liquor” and “twisted tea”. She stated that she consumed a quarter or more of a 26er of hard liquor and two or three twisted teas. After consuming this much alcohol she was drunk. She was stumbling and slurring her words.
[15] She did not know JP. She met him in the kitchen of the house where the party was taking place. She recalled that he told her that he came to the party because he followed two other kids. They invited him to come.
[16] KJ stated that the people at the party were 14 to 18 years old.
[17] When she first met JP, she was taking a shot. She did not remember if anyone else was there other than her and JP.
[18] She asked him how old he was because he looked older. He told her that he was 21 years old. She told him that she was 14 and she had to go. In response to this, he said, “Don’t worry I’m not weird”.
[19] She was by the counter and he was sitting on a chair. She did not think he was drinking. They spoke for a couple of minutes and then someone yelled, “Cops!”
[20] She left the house. LP, whose evidence I have discussed below, was with her. When she saw the police she just started running. She did not know if JP was with her as she was running or if he just caught up to her. She ended up at the marina. She did not remember what route she took to get there. LP told her that she was really drunk and she needed to calm down.
[21] KJ recalled being with a group of people. She recalled being near a wooden boat that is near the TransCanada Trail right-of-way.
[22] KJ stated that “people” saw her with JP and told her not to go with him. One of those people was LP. KJ told LP that, “He’s not weird. He’s fine. He’s just trying to help me.”
[23] KJ stated that from the marina, they were supposed to walk to her house. JP offered her a place to stay at his place and she said OK. She recalled walking to a hotel, which she later identified as the Hillside Inn. They passed “the College” (which I infer is the Pembroke Campus of Algonquin College) and they “went on the main drag” (which I infer is a reference to Pembroke Street).
[24] KJ could not recall how long she walked. She did recall seeing the police on the way and she recalled that JP held her up because she was struggling to walk.
[25] As they walked, they talked about “random things”. JP told her that he had been in the military. He also told her that he had Xanax back at his place. She told him that she was humiliated at the party. People called her a “slut”.
[26] KJ did not recall what time they arrived at the hotel. She could not recall what room JP was renting, but she remembered it was near an outdoor barbeque.
[27] Once they got to the room, they sat at the table and JP grabbed a prescription pill bottle. He poured two white, oval shaped pills into her hand and told her it was Xanax. KJ took them. She did not believe that JP consumed any pills.
[28] JP got in the bed and asked her to come lay down with him. KJ obliged and got into bed with him. She closed her eyes. She recalled that JP asked if he could kiss her. She agreed that he could.
[29] The bed was a “two-person bed”. She was on the side by the window.
[30] After he kissed her, JP started to remove her clothes. KJ told him “No, I’m on my period and I don’t want to.” She recalled that he said “it’s fine” and kept going. She recalled that she “went limp” because she wanted to go to bed. “I let him do it because I didn’t know what else to do”.
[31] KJ was wearing a black dress, black shorts, black underwear and a black bra.
[32] JP removed the straps of her bra and started to unzip her dress. He took off her dress and pulled down her shorts and underwear.
[33] KJ recalled feeling like her arms and legs were heavy. She was “really tired” and “didn’t feel good”.
[34] After he undressed her, JP inserted his penis into her vagina. KJ “just laid there.” She could not recall how long she laid there for. She stated, “He was fucking me”.
[35] The Crown asked, “How did that end?”. KJ stated that she told JP she needed water because she was going to be sick. She drank some water. He kept going. He then asked her, “Are you finished?”. He removed his penis and laid next to her.
[36] She continued to lay there. She could not remember how long she laid there for. After a little bit he went and cooked himself a steak on the outdoor grill and returned to eat it. She photographed him with her phone.
[37] KJ photographed him because she knew what happened “wasn’t quite right. I didn’t want him to do what he did. I needed proof that I was with him.”
[38] KJ left the next morning at around 8 am. JP’s mom, SW (whose evidence is described below) came and drove her home. KJ recalled that SW was mad that JP had texted her at 1:00 that morning. KJ did not know what else they talked about or how long the drive was. SW dropped her off near a Tim Horton’s that was not far from where she lived. KJ recalled that SW’s car had lots of clothes and stuff in it.
[39] During the car ride, JP gave KJ “a snap” (referring to a snap chat message) and his phone number. She recalled that as they drove, JP and SW were speaking and JP told SW that KJ was 20 years old.
[40] KJ did not say anything to correct him because JP told her not to tell anyone that she was 14 so she didn’t say anything. She could not, however, specifically recall when they had that conversation. She also recalled that JP told her that he had a 13-year-old son. She recalled that “when we were fucking” he told her that she would like his son better. That made her feel weird.
[41] Once she arrived at her home, KJ went to bed until 3 or 4 pm. She woke up but stayed away from her mother, CC. She then went back to bed and slept until about 4 or 5 am. She then sent CC a message and told her what happened.
[42] KJ stated that she sent a message because she was scared that she would get pregnant or JP would give her something. She knew what happened wasn’t right.
[43] She recalled that in the message she told CC that “he” raped her and fucked her. She told CC that she was scared that she was pregnant. She did not remember the message.
[44] KJ identified Exhibit 1 as her message which stated:
When I went out I lied I went to that party cuz I asked again they said yes cops came at 12 so I ran I ended up with a 28 year old he was supposed to walk me home but then he said let’s go hangout at his hotel and he gave me Xanax we talked and jus watched tv for a while I was already drunk then I was passing out then he woke me up to ask to kiss n I said k then we had sex then he told me he has a 13 year old son and when I went with him he said he was 21 but I put the pieces together yesterday that that’s not possible and he stole my weed don’t be mad at me don’t make me get rid of my cat I’m sorry ik I made a mistake I won’t do it again I’m sorry idk if he wore a condome either cuz my eyes were closed the hole time was so tired I’m sorry.
I’m sorry I know I’m gross
I got his number and when I msged about it he’s clean std wise and when I asked if he stole my weed ik he did but he blocked me.
[45] She recalled feeling scared. She did not know how CC would react.
[46] With respect to how she knew that JP was 28, KJ explained that one of her friends told her that.
[47] After she sent the message, CC came downstairs and asked her the man’s name. CC then called the police who told her to take KJ to the hospital and wait for them. The police ultimately took a statement from her.
[48] KJ is autistic. She denied being on any medication for it when she testified. In July 2023, she was on medication for something else but she could not remember what it was. CC was in charge of her meds. KJ was pretty sure she took her morning medications before she went to the party.
[49] KJ identified two photos of JP that she took on her phone as Exhibits 2A and 2B. These are the same photos that appear in her text messages which are included in Exhibit 1.
[50] KJ believed that JP stole about half an ounce of weed from her. A few days later, she found out that he took her air pods.
[51] KJ recalled that she asked JP if he used a condom and he said he did. She stated, however, that she did not think he did. She could not recall where he was when he wiped himself off but she recalled seeing a paper towel on the bedside table and she assumed that he used it.
Cross-Examination
[52] KJ told defence counsel that she and CC also argued about whether she would go to the party. CC did not want her to go. She asked CC to buy her alcohol. CC had bought her vodka and Sour Puss in the past.
[53] KJ denied that when she first left her house she was dressed in a sweatshirt and jeans but changed into her dress at a friend’s house on the way to the party.
[54] When asked if she was wearing any make-up, KJ stated that she had her lashes done. She agreed that she was carrying a backpack which contained her weed and her air pods. She denied that she had condoms with her.
[55] KJ reiterated that when she met JP she was drinking hard liquor and twisted tea. She recalled that he saw her take one shot of liquor.
[56] Defence counsel asked KJ about the following discussion at page 8 of her statement to the police:
Police: …..So, you were drinking at the party? (inaudible) um, was…did he witness you drink at all, does he see you drinking?
KJ: By the time I, whenever he saw me, maybe, but by the time I met him, I had nothing to drink.
[57] KJ agreed that this was completely different from her evidence in Court. She explained that it had been over a year and it was hard to remember things.
[58] Defence counsel then suggested to KJ that JP told her that he was 31, not 21. She disagreed.
[59] She also disagreed that in the kitchen at the party, JP told her that he had a 13-year-old son.
[60] Defence counsel suggested to KJ that she told JP that she was 20. She disagreed and said that she does not lie about her age. She then admitted that she had lied in the past quite a few times to get alcohol. She denied that she lied about her age to get a bank loan.
[61] Defence counsel then asked KJ about her evidence that JP told her not to tell anyone that he had sex with a 14-year-old. Defence counsel suggested to KJ that she never told the police about this in her statement. She agreed. She explained this omission by stating that she was still coming off the drugs that JP gave her and it was very hard to give that statement.
[62] Defence counsel suggested to KJ that when she left the party, she left with JP and they walked together to the marina. KJ stated that she did not remember.
[63] KJ disagreed that JP was insistent on walking her home. Defence counsel suggested that she told JP that she did not want to go home because she was having a fight with her mother. KJ agreed that she told JP that she had a fight with CC, but she did not tell him that she did not want to go home.
[64] Defence counsel asked KJ about her evidence that a police car passed them as they were walking down Pembroke Street East toward the hotel. Defence counsel suggested that she did not mention this to the police in her statement. KJ stated that she did not remember telling the police about it. When invited to look at her statement, she stated that it would take “way too long” to look at it. Defence counsel then invited her to accept that there was no discussion of a police car in her statement. KJ stated, “I don’t know”.
[65] KJ agreed that when they were chilling at the table, they smoked weed. She stated that she took the weed out and JP rolled the weed into joints. She stated that he had the papers. She recalled consuming one or two joints.
[66] KJ agreed that the photo in Exhibit 2A was taken at 1:32 am. She could not recall if that was before or after the sex.
[67] KJ stated that JP grilled a steak outside both before and after sex. She denied that he asked her if she wanted any steak.
[68] KJ agreed that she asked to be dropped off at the Tim Horton’s. She stated that she did not want JP and SW to know where she lived.
[69] KJ denied that on the drive to Tim Horton’s SW looked at JP suspiciously and that KJ stated, “What?! I am 20.”
[70] KJ agreed that JP did nothing to hide his identity from her and gave her all kinds of information to help her figure out who he was. KJ stated, “He’s not very smart”.
[71] With respect to the sex, KJ disagreed that the only thing that JP did was unzip the back of her dress. She disagreed that she took off everything else.
[72] She again reiterated that she didn’t want to have sex because she was on her period. When defence counsel asked her if she told the police this detail when she gave her statement, she stated, “I don’t think so”.
[73] KJ agreed that she also did not think that she told the police that JP told her that she would like his 13-year-old son during sex. She explained this omission again by stating that she was coming off drugs and she barely knew what to say.
[74] KJ agreed that she was very concerned about how CC would react. Defence counsel suggested that her main concern was that CC would get rid of her cat. KJ stated, “My main concern was also getting him charged for what he did to me.”
[75] KJ could not recall how many people were at the party. She stated that she did not know everyone who was there. She disagreed that some of the people at the party were older than 18. She also disagreed that anyone could walk into the party. She stated that one had to knock and be let in. She agreed, however, that she did not control who came to the party.
[76] Defence counsel suggested that by the time they got back to the hotel, she would not have had anything to drink for between one and two hours. KJ stated that she did not know.
[77] KJ stated that she was 5’3” to 5’4” tall. She had black hair and was wearing lashes. She went to a beautician to get extensions, and this cost about $55 every two weeks. When asked why she did this, she stated, “I don’t get pretty without them”. Defence counsel suggested that this made her look older. KJ stated, “I don’t know”.
[78] KJ agreed that when SW arrived the next morning, she was still in bed. She denied having any conversations with SW. She stated that SW asked JP some questions. KJ could not remember what JP told SW. Defence counsel suggested that JP told SW that KJ was 20. KJ disagreed and stated that he told SW that in the car.
Re-Examination
[79] KJ stated that she gave her statement to the police at the police station. She could not remember if she talked to the police before she gave her statement. She stated that she gave her statement to “someone named Christine”. She could not remember if she had spoken to Christine before. She stated that she gave her statement to the police a couple of days after the incident.
[80] Crown counsel asked KJ if she remembered telling the police about her period in her statement. KJ stated, “I think so.” Crown counsel then took KJ to page 16 and 17 of her statement, where the following exchange took place:
Police: You mentioned to my yesterday about in your period. Does that (inaudible) at all? Or….
KJ: Yeah.
Police: What is that?
KJ: I was on my period.
Police: You were on your period? Okay. How far into your period were you?
KJ: I think it was day three.
Police: Day three? Okay. Does that factor into anything there that night at all, or …?
KJ: No, I didn’t understand why he still did it while I was on my period. Cuz, I was grossed out and stuff. Nah.
(Decision continues in full as provided above.)