ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is subject to publication restrictions under section 486.4 of the Criminal Code.]
COURT FILE NO.: 7-388/12
DATE: 20130913
B E T W E E N:
HER MAJESTY THE QUEEN
L. Spencer, for the prosecution
- and -
PATRICK SIKORSKI and DANIEL GRIFFITHS
E. Greenspan Q.C. & J. Greenspan, for Patrick Sikorski
D. Humphrey & P. Hamm, for Daniel Griffiths
HEARD: August 6-9, 12-15 & September 4, 2013
Nordheimer J. (orally):
[1] Patrick Sikorski and Daniel Griffiths each stand charged with one count of sexual assault, one count of administering a stupefying drug or noxious substance for the purpose of sexual assault and one count of committing a sexual assault to which the other was a party, colloquially referred to as “gang” sexual assault.
[2] In an effort to protect the privacy rights of the complainant and certain other witnesses in this case, I shall use first names only during the course of my reasons.
The evidence
[3] The charges arise out of events that took place in the early morning hours of December 5, 2009. The lead up to those events, however, begins in the evening of December 4. The complainant in this matter, H., planned on going out with two girlfriends that she knew from work. They had plans to go to a club known as the London Tap House located in the entertainment district of Toronto. A fourth female, who was a friend of one of the other women, became part of these plans.
[4] The four women went to the London Tap House. According to H., they arrived there some time around 10:30 or 11:00 p.m. They each got a drink from the bar. The amount of alcohol that these women consumed during the course of the evening is a matter to which I will return later. The women went to the dance floor to dance. Again according to H., at some point, the women left the dance floor and went up to the roof of the building in which the club is located. While on the roof, three men came up. Patrick and Daniel were two of these men. Conversation ensued between these three males and the four women. H. was talking mainly with the third male, Adam. H. and Adam went back into the club and continued talking. They went to the bar where Adam bought H. a drink. It is not clear where the others went at this time. It is a matter of an agreed fact that Adam was at the London Tap House that evening and that he did have a conversation there with H..
[5] According to H., she eventually parted company with Adam and went to the dance floor in search of her friends. At some point, H. says that Patrick asked the four women if they wanted to go to another club called O’Malley’s. The four women discussed the offer. H.’s two friends decided that they did not want to go to this other club because they had to work the next day. The fourth woman, C., did want to go as did H.. It was therefore agreed that H. and C. would meet up with Patrick, Daniel and Adam at this other club.
[6] The four woman said their goodbyes. Again, according to H., she and C. got into a cab to go to O’Malley’s. O’Malley’s was, in fact, only a short distance from the London Tap House – less than a block. H. did not realize that O’Malley’s was so close which made for a very short cab ride.
[7] Staying with H.’s recollection of the events, she and C. went into O’Malley’s. H. got a beer and C. got some form of drink. They went looking for the three men. While H., in her examination in chief, made it appear that she was only looking for Adam, in cross-examination she eventually admitted that the two of them were looking for all three men.
[8] O’Malley’s was close to closing. H. and C. ran into Patrick and Daniel near the door of the club. They asked where Adam was and the men responded that Adam had gone home. The men asked if H. and C. wanted to go to Patrick’s condominium for a drink. H. and C. agreed. The four of them got into a cab. They went to Patrick’s condominium which is on Adelaide Street East near Sherbourne Street.
[9] The four of them went into the condominium building. Surveillance video from the lobby of the building shows H., C., Patrick and Daniel arriving at about 2:30 a.m. H. is visibly smiling when they arrive and Patrick has his arm around H.’s shoulder as they enter the lobby of the condominium building. Patrick appears to put his hand on or towards H.’s back as he guides her in the direction of the elevator.
[10] The group went up to the condominium. According to H., Daniel and Patrick said that the group had to be quiet because Patrick’s uncle (who I understand actually owned the condominium) was sleeping.
[11] The condominium has two levels. The entrance level has a hallway along which there are two bedrooms, a washroom and a laundry room. The uncle’s bedroom was off the left side of the hallway and Patrick’s bedroom was at the end of the hallway. The upper level has a living room and kitchen with an island kitchen counter all in a combined open space. There is a relatively narrow and somewhat steep staircase between the two levels.
[12] The group went up to the upper level. According to H., she and C. sat at the island kitchen counter while Daniel and Patrick stood behind it. H. and C. were offered, and each took, a glass of wine. H. and C. were then asked if they wanted to have some Polish vodka. There was some relevance to the fact that the vodka was Polish vodka as Patrick’s family has a Polish background. H. also had a relative who was Polish and this had been the subject of some conversation earlier within the group.
[13] Four shots of vodka were poured. H. remembers that the vodka was poured into shot glasses. H. remembers each of them “knocking back” the shots of vodka. H. remembers that the vodka bottle was orange in colour. After the vodka shots, H. consumed some of the wine but she says that she did not consume much of it. The group moved into the living room area where they continued to talk. H. says that she began to feel faint at this point and that is the last thing that she remembers of being in the condominium. H. next remembers waking up around 1:00 in the afternoon in her own place. She was awoken by a telephone call from a friend.
[14] H. says that when she awoke she was wearing only her bra and underwear. She felt groggy. She had no immediate memory of the events at the condominium. H. says that she felt sore in the area of her anus. She also noticed that she did not have the tampon that she had inserted before she went out the evening before.
[15] H. called one of her work friends to get the number for C.. She then called C. because she was hoping that C. could tell her what had happened at the condominium. C. could not help her in that regard as C. had no memory of those events either.
[16] H. went out to visit a friend. She returned to her home a couple of hours later. She began to get ready to go out with yet another friend to see a movie. As she was getting ready, H. says that she had a flashback. She says that she remembered being on a bed naked, lying face down with her arms out. She says that Daniel was on top of her and was penetrating her anally. She also remembers not being able to lift her arms.
[17] H. went out to the movie with her friend. As they were waiting for the movie, she told her friend about what had happened. Her friend urged her to go to the police. H. was reluctant to do so and decided to think about it. The two went to the movie. After the movie, H. decided that she would go to the police.
[18] H. called the police and was directed to a police division. She went there with her friend. Before doing so, however, H. first went home and collected a black polo shirt that she had found when she awoke in her home. It was a shirt that she did not recognize. She also brought Adam’s business card that he had given her at the club. H. told the police what had happened and gave a videotaped statement. H. was then sent to Women’s College Hospital where a sexual assault examination was performed.
[19] After the sexual assault examination, H. went home. A short time later, two police officers came to her home and collected the clothing that H. had been wearing the evening before.
[20] At a later point, she is not sure on which day, H. says that she was lying down when she had another flashback. In this flashback, she again remembers being on a bed, naked and face down. She looked behind and saw Patrick on top of her, penetrating her anally. She turned her head away but then turned back a second time. This time she saw Daniel on top of her and he was penetrating her anally. H. remembered either Daniel or Patrick, she does not know which one, ask her if she “liked it”. H. also remembered that there was a “trade off” between the two men regarding who was on top of her and that when she was traded off from one male to the other, one of the males said to the other “this one likes it up the ass”.
[21] H. called the police and reported this second flashback. She then provided a second statement to the police.
[22] H. says that she had yet a further recollection of the events. In this recollection, she recalled her pants being thrown on top of her. She also remembers being on her hands and knees searching around for her clothes. She remembers another female being present who she did not know. H. did not know where this other female came from. According to H., this other female kept asking her if a black shirt belonged to her. Eventually H. took the shirt and put it on. This is the black polo shirt that she later found in her home and that she took to the police. H. also says that she remembers seeing C. naked and lying in a ball on the floor of the living room. C. grabbed her clothes and quickly dressed. Throughout all of this, according to H., Patrick and Daniel were present but did not assist either her or C.. H. also remembers that Patrick and Daniel were both fully clothed at this time.
[23] H. says that she does not remember leaving the condominium but she does remember being in a cab with C.. Surveillance video shows H. and C. leaving the building at about 4:30 a.m. H. also says that she does not remember getting out of the cab or getting into her home. On this point, there is some, albeit vague, evidence that H. arrived at her home at around 7:00 a.m.
[24] H. believes that she was drugged that night. She bases this belief on the fact that she had never experienced such conditions before. She had not had flashbacks before or blackouts of memory. H. also says that she had no intention of having sex that evening in general and, in particular, had no intention in engaging in anal intercourse that, she says, holds no interest for her.
[25] Finally, H. says that she noticed in the afternoon after she awoke that she had a bump on her forehead, scrapes on her knee and on her palm and that the side of her face felt sore.
[26] I heard from each of the other women who were part of the group at the London Tap House. A. and K.1, who were the two work friends of H. and who both left the London Tap House and went home, confirmed some of what happened at the London Tap House in terms of the group’s arrival, the drinks that they had and what they did. However, of some note, is that K.1 says that she and H. alone went upstairs at the London Tap House on a second occasion and that is when the two of them first met Patrick and Daniel. A. and C. were not present. Also, none of K.1, A. or C. confirm that Patrick invited the four women to O’Malley’s. Rather, K.1 says that she had had enough drinking at around 1:00 a.m. and decided that she was going to go home, in part, because she had to work the next day. K.1 says that she texted A. from the washroom telling her that she had decided to go home. She says that A. suggested that they should stay a little longer but that they would then leave and she would go with K.1. A. essentially confirms that this is how she and K.1 came to leave the London Tap House.
[27] K.1 and A. also both say that H. and C. decided that they were going to continue partying and, as a consequence, the group separated after leaving the London Tap House. K.1 and A. got into a cab and went home. They last saw H. and C. walking south from the London Tap House. K.1 and A. had no idea where H. and C. were going.
[28] C. also gave evidence. She was the other of the four women and the one who went to the condominium with H.. Remarkably, C. also has no memory of the events at the condominium but her memory failures begin some time prior to the events at the condominium. Indeed, C. says that her memory begins to fail at the time that she and H. decided to go to O’Malley’s. As a consequence of her memory failures, C. cannot say how much she had to drink that night. C. does not remember how she got to O’Malley’s and she does not remember how she got to the condominium. While she has a vague memory of a male being present at the condominium and that he had a Polish background, C. is not able to give any more specifics nor is she able to identify the male. C. next has a memory of being outside a building somewhere but she did not know geographically where she actually was. She managed to call a cab that took her home. C.’s cell phone logged a call to a cab at 6:40 a.m.
[29] C. acknowledges that she has had memory blackouts associated with her consumption of alcohol in the past. While C. says that the after effects of that particular evening were the worst that she had experienced, since she is unable to say how much she had to drink, she fairly acknowledged that the severity of the effects may have arisen from her consuming more alcohol than she ever has in the past.
[30] I also heard from the nurse who conducted the sexual assault examination on H.. She confirmed the contents of her written report including that H. reported that she had consumed six to eight drinks during the evening in question along with one-half glass of wine. The nurse also noted a bump on H.’s head, a scrape on her knee (although not on her palm) and some tenderness on her shoulder (not on the side of her face). The nurse also recorded that H. had said that she was at the end of her menstrual cycle.
[31] During the course of the examination, the nurse did not find any injuries in H.’s vaginal or anal areas.
[32] After H.’s report to the police, the police obtained a search warrant for the condominium. The search warrant was executed some sixty plus hours after the events in the condominium had occurred. When they entered the condominium, the police found many glasses on the island kitchen counter. They found bottles of vodka in the fridge including an orange coloured bottle of vodka. They found many used condoms in Patrick’s bedroom and they found a tampon, later testing of which found H.’s blood on it. The tampon was in a waste basket in the bedroom. The police also found the shirt that H. had been wearing that night under a couch in the living room.
[33] DNA testing was done on the condoms. Neither Patrick nor Daniel could be excluded as the donors of the DNA found on some of these condoms. Female DNA was also found on some of the condoms but H. and C. were both excluded as donors of that DNA.
[34] I also heard from a fingerprint expert who examined a number of fingerprints found on glasses located by the police when the search warrant was executed. Both Patrick’s and Daniel’s fingerprints were found on some of the glasses. Neither H.’s or C.’s fingerprints were found on any of the glasses. A total of twenty-eight fingerprint impressions were analyzed. Eleven of the fingerprints that were suitable for comparison could not be matched to anyone. Of some significance is that Patrick’s fingerprint was found on the outside of a cordial glass that was found on the island kitchen counter. On that same glass, traces of a drug called Hydromorphone were found. An expert from the Centre for Forensic Sciences said that Hydromorphone is a very strong drug that is used for pain relief. It is not a typical “date rape” drug. The drug was found on the outside of the glass, not on the inside. The expert acknowledged that the traces of the drug could have been left by someone who had consumed the drug and then drunk from the glass thereby transferring traces of the drug from their mouth to the glass. The expert also acknowledged that the drug could have been left behind if the glass was not properly washed.
[35] I also heard from one other person who was part of the events in the early morning hours of December 5, namely, Carla. Carla was the unknown female that H. remembers being at the condominium and who helped H. find her clothes and get dressed. Carla was, at that time, Patrick’s girlfriend. Patrick had been texting Carla over the course of the evening in an effort to convince Carla to come over to his place. The text messages were entered into evidence. In fairness, the text messages are not time stamped so one cannot tell precisely the time frame in which they were sent. In any event, Carla eventually agreed to come to Patrick’s. As shown on the lobby security video, Carla arrived at the building just a few minutes before 4:00 a.m.
[36] When she arrived, Carla says that Patrick came down to the lobby of the building in his bathrobe and let her in. The lobby security video confirms that fact. He also paid for the cab that she had taken. Patrick and Carla went up to the condominium and, upon opening the front door, Carla says that she immediately saw a female standing in the doorway of Patrick’s bedroom wearing only a burgundy bra. It is obvious that this was H.. Not surprisingly, Carla says that she was not happy to see a naked female standing in the doorway of Patrick’s bedroom. One of two things were likely to happen as a result of this discovery. Either Carla was going to turn and leave the condo or the other female was going to. Carla chose to remove the other female.
[37] Carla went into Patrick’s bedroom to look for H.’s clothes. She saw Daniel lying in Patrick’s bed under a blanket. It was obvious to Carla that Daniel was naked. Carla found H.’s underwear and she says that H. herself put the underwear on. Carla says that she and Patrick then escorted H. upstairs in search of the rest of her clothing. To Carla’s greater surprise, on getting up to the living room, she found another naked female. This obviously was C.. There was a pile of clothing near the kitchen. Carla says that she found H.’s jeans and a black shirt that she assumed was H.’s. Carla assisted H. in putting the black shirt on but H. put her jeans on by herself. While Carla says that she also tried to assist C. to get dressed, C. was openly antagonistic towards Carla and got dressed on her own.
[38] Once dressed, Carla says that Patrick and she followed H. and C. downstairs. Carla noticed that both H. and C. were wobbly on their feet. At the bottom of the stairs, H. and C. each put on their shoes and their coats. As part of that, Patrick had to find H.’s socks, which he did find in his bedroom. H. and C. then left the condo but turned the wrong way to get to the elevator. Patrick redirected them but H. and C. reacted by trying to come back into the condominium. Carla says that she and Patrick simply closed and locked the door to the condominium before they could re-enter.
[39] Throughout all of this, Carla says that Patrick was in his robe and that Daniel never left the bedroom. Carla also says that H. was very friendly towards her and thanked her for her help whereas C. was openly hostile towards her. Finally, Carla says that she believed that both H. and C. were drunk. Carla noticed that H. sometimes slurred her words while speaking but adds that she was able to converse with H. without any difficulty. C. did not speak to Carla. Carla adds that she thought that C. was the drunker of the two.
[40] Finally in terms of witnesses, I heard from the security guard who was on duty in the lobby of the building. The guard remembered H. and C. coming down from the condominium. The guard says that he was alerted to their presence by the alarm from the elevator indicating that the elevator doors were being held open. He went to investigate and found one female holding the elevator doors open and another female on the floor of the elevator. The security guard says that the female on the floor of the elevator was wearing a dark coat and the other female was wearing a light or bright coat. If the security guard is correct in this recollection, then the female on the floor of the elevator was H. and it was C. who was holding the elevator doors open. C. got