ONTARIO
SUPERIOR COURT OF JUSTICE
PUBLICATION BAN IN EFFECT PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
COURT FILE NO.: 10-SA-5025
DATE: 20131112
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.A.E
Accused
James Cavanagh, for the Crown
Bruce Engel, for the Accused
HEARD: September 5, 6, 7, October 1, 2, 3, 4, 5, April 22, 23, 24, 25, 26, 29, July 29, 30, 31, August 1, 2013
REASONS FOR JUDGMENT
Toscano Roccamo J.
The Charge
[1] D.E. stands charged with the sexual assault of M.J.C. on April 25, 2009.
Background Facts
[2] M.J.C. is a 28-year-old mental health professional who acquired two Masters Degrees, in individual and couple counselling. She teaches, and provides counselling services to government employees through Health Canada and at a community information centre in Ottawa.
[3] D.E. is a 26-year-old man who presently resides with his parents and a younger sister in Barrie, Ontario. He works full-time as a store manager for Crocs Shoes, while pursuing a certificate in human resources management from Seneca College, by correspondence.
[4] D.E. lived in Ottawa from September 2005 until in or about 2010, after being charged with the subject offence. He moved to Ottawa in 2005 to pursue a Bachelor of Arts degree at Carleton University. He struggled with the essay writing component of his course work and eventually dropped out of school by September 2008, at which point he took up employment as a store manager for TELUS Mobility. At the same time as he worked for Telus, he worked part time as an events planner with Prime Productions alongside his close friend and roommate, A.C.
[5] D.E. met M.J.C. through A.C. and another roommate, C.S., in the summer of 2008 and described himself as “good friends” with M.J.C. by the spring of 2009.
[6] On April 24, 2009, plans evolved among D.E., M.J.C., A.C. and A.C.’s girlfriend, S.S.C., to celebrate the end of semester for M.J.C. and S.S.C. with an outing to a local bar. After work that day, M.J.C. drove herself to 3691 Albion Rd., the townhouse co-owned by A.C. and C.S., and shared by them with D.E., S.S.C. and another student.
[7] M.J.C. arrived at her friends’ home happy, healthy and alert for what began as a pleasant gathering among friends. It ended disagreeably for all concerned after M.J.C. consumed a certain quantity of alcohol and became violently ill. While socializing with A.C., D.E., and S.S.C., M.J.C. vomited both on herself and in the basement bedroom shared by A.C. and S.S.C. M.J.C. had to be carried upstairs by A.C., who lay her down in a “recovery position,” with her backside against the back of the couch to avoid the potential aspiration of vomit if she once again became ill while passed out. After assisting M.J.C. with a cursory clean-up and satisfying themselves as to her safety and comfort, A.C., S.S.C. and D.E. left M.J.C. on their living room couch with a note, crackers and garbage pail nearby, while they followed through with their plans to go to the bar.
[8] Four to five hours later, M.J.C. was woken by her friends, still soiled by the vomit in her hair and clothing. She was invited to use a shower on the second floor, two doors over from D.E.’s bedroom.
[9] M.J.C. and D.E. provide dramatically different accounts of what happened after M.J.C. showered and before she returned to her own home very early the next morning, on April 25, 2009. M.J.C. told a number of her friends, beginning with S.S.C., as well as family members, that she had been sexually assaulted by D.E. That afternoon, her best friend, N.L., encouraged her to report the matter to police. She did so without identifying D.E. as her assailant.
[10] M.J.C. also attended the Ottawa Civic Hospital on the evening of April 25, 2009, where she completed a Sexual Assault Forensic Evidence Form and was examined. She then consulted with two separate legal counsel before providing a detailed account of the incident to Detective Todd Harding of the Ottawa Police Service on April 29, 2009.
[11] Detective Harding interviewed A.C. on May 29, 2009, and S.S.C. on June 4, 2009. D.E. was interviewed on August 5, 2009, and, at that time, denied having sexual intercourse with M.J.C. After he was arrested on January 29, 2010, he was ordered to produce a DNA sample. Forensic analysis matched his DNA profile to both that found on a vaginal swab taken from M.J.C., and that on boxer shorts belonging to D.E., which M.J.C. had kept.
[12] After a preliminary inquiry, held April 26, 2011, D.E. was ordered to stand trial for the sexual assault of M.J.C.
The Issues
[13] This case raises two main issues:
The central issue is whether M.J.C. consented to sex with D.E. on April 25, 2009. Related to this issue is whether untruthful statements made by D.E. after April 25, 2009, may be used to prove a guilty mind.
An issue also arises as to whether the defence of honest but mistaken belief in consent applies to the circumstances of this case.
(Complete judgment text continues exactly as in the source, unchanged, through paragraph [114] and the closing release lines.)
Madam Justice Toscano Roccamo
Released: November 12, 2013
COURT FILE NO.: 10-SA-5025
DATE: 20131112
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
D.A.E.
Accused
REASONS FOR JUDGMENT
Madam Justice Toscano Roccamo
Released: November 12, 2013