# ONTARIO
# SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:** CR-12-7000394-000
**DATE:** 20130405
**SUBJECT TO A PUBLICATION BAN**
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## BETWEEN:
HER MAJESTY THE QUEEN
– and –
JONATHAN MARQUAYE
Defendant
- and-
FRANCIS ADU
Defendant
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Lorna Spencer, for the Crown
Rohan Michael Robinson, for the Defendant Jonathan Marquaye
Cynthia Fromstein, for the Defendant Francis Adu
**HEARD:** February 11, 12, 13, 14, 15;
February 19, 20, 21; March 15, April 5, 2013
**J. WILSON J.**
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# REASONS FOR JUDGMENT
## Overview
[1] In this trial, the complainant, Ms. C, testified that she was sexually assaulted by numerous men, perhaps five and up to ten, over a period of almost thirty one hours on November 19 and 20, 2010, in the apartment of the accused, Mr. Francis Adu. The toxicology results confirm the presence of the DNA of at least three different males on both of her breasts and on her underwear. Ms. C’s memory of the events is fragmented and she believes that she was drugged. Ms. C was either forced to smoke crack cocaine or voluntarily smoked crack cocaine during these alleged events. Ms. C had successfully completed a drug rehabilitation programme at the time of these events and was living in a transition house. Ms. C has a lengthy and serious criminal record, and a long history of drug abuse.
[2] Ms. C testified that after the assaults, she snuck out of the apartment and went directly to Shoppers Drug Mart to seek help and to report the incident to the police. She spoke to a 911 operator and shortly thereafter was taken by ambulance to Mount Sinai Hospital, escorted by the police. After the events were reported to the police and they traced a phone number given to them by Ms. C, the police investigated the apartment of Mr. Adu. There were several people found in the apartment when the police arrived.
[3] Mr. Adu and Mr. Marquaye were subsequently charged with sexual assault pursuant to [s. 271](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec271_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) and being a party to a sexual assault pursuant to [s. 272(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec272subsec1_smooth)(d) of the Criminal Code, colloquially known as “gang sexual assault”, based upon the evidence of Ms. C. Subsequent toxicology reports confirmed the presence of DNA of these two individuals on and, in the case of Mr. Adu, in Ms. C’s body.
[4] Mr. Adu is charged with one count of sexual assault and one count of committing a sexual assault on Ms. C to which the co-accused, Jonathan Marquaye, was a party. Mr. Adu acknowledges that he had sexual intercourse with Ms. C. He asserts that Ms. C was voluntarily high on crack cocaine at the time, but that she consented to the activity in question, and that she was capable of consenting to the activity. Alternatively, Mr. Adu argues that he honestly, but mistakenly believed Ms. C was consenting. His semen was found on the vaginal swab conducted by the sexual assault nurse. The DNA of Mr. Adu, was also found on both breasts of Ms. C, and on her underwear in two locations.
[5] Mr. Jonathan Marquaye is also charged with one count of sexual assault and one count of committing a sexual assault on Ms. C to which Mr. Adu was a party. He denies that he ever touched Ms. C. His DNA, was found on Ms. C’s left breast, along with the DNA of Mr. Adu and the DNA of an unknown third male. Mr. Marquaye alleges that the DNA transfer somehow took place when he and Ms. C were sharing a crack cocaine pipe.
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(Complete judgment text continues exactly as in the source provided above.)
minicounsel