ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM(J) 590/10
DATE: 20131114
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.S.
K. Watson, for the Crown
T. Wiley, for the Defendant
HEARD: April 15, 16, 17, 19, 24, 25,
May 16, 17, 30, June 11, August 12, 14, 15, and 16, 2013
Tzimas J.
REASONS FOR JUDGMENT
Introduction
[1]
Introduction
M.S. stands charged with one count of sexual assault against S.G., contrary to section 271 of the Criminal Code Canada. The Crown alleges that the sexual assault took place on October 14, 2008, at the City of Brampton, in Central West Region.
2Concerns about something wrong having occurred at Motel No. 6 were first raised by two motel employees on October 14, 2008, when they observed S.G being taken out of the motel by two older men. They were concerned that she was young, she looked drunk or drugged and she could not walk by herself. M.S. was first interviewed by the police on October 20, 2008. He was called in to provide a DNA sample in February 2009. He was charged with sexual assault on April 14, 2009. M.S. pleaded not guilty.
The trial of this case occurred over 13 days. During this time, the trial proper was preceded by a s.276 application. The evidence that was led in the application was, at the request of the Crown and the defence, included as part of the trial evidence, to avoid the need for repeated examinations. The Court heard from a total of ten witnesses.
FACTUAL OVERVIEW
[3]
Factual Overview
M.S. and S.G. met sometime in 2007. On October 13/14 M.S. was 25 years of age and S.G. was almost 17 years of age.
4M.S., S.G. and others would get together periodically to hang out or as M.S. said repeatedly, “to chill”. M.S. testified that his friendship with S.G. evolved into a sexual relationship. He described three instances prior to the alleged incident when he and S.G. had sexual relations. In contrast to his testimony, S.G. denied any sexual relations. She had a boyfriend but it was not M.S.
5October 13, 2008 was Thanksgiving. In the late evening of that date, M.S., S.G. and F.B. got together. They had no fixed plans for the evening. Eventually, they went to a motel where they spent the night.
6When they got to the motel, all three started to drink. According to M.S. F.B. passed out. He and S.G. drank a fair bit. Then they had sex. S.G. confirmed that they drank a lot. However, she then explained that she passed out and did not remember anything else that happened that night. Her recollection of the events pick up in the late afternoon of October 14, when she woke up in the back of M.S.’s car.
7On the following morning, two motel housekeepers witnessed the departure of two older guys with a girl. The two older guys were M.S. and F.B. The girl was S.G. They became very concerned because in their words the girl could not walk and was being dragged to a car. They advised they supervisor who contacted the police.
8The call to the police resulted in a meeting between M.S. and Constable McPherson. M.S. denied that anything untoward occurred on the evening of October 13/14, 2008. M.S. was required to provide a DNA sample in February 2009 and he was charged with sexual assault on April 14, 2009.
9In the meantime, S.G., who had slept in M.S.’s car for the better part of October 14 and then continued to sleep at her home until the early hours of October 15, started to realize that something had gone terribly wrong on the evening of October 13/14. She told her mother that she thought that she was raped. Her mother suggested that she go to the hospital to get tested and S.G. agreed. That initiated an investigation from S.G.’s end that included medical testing and a statement to the police.
AGREED STATEMENT OF FACTS
[10]
Agreed Statement of Facts
On October 15th, 2008, S. G. attended Joseph Brant Memorial Hospital in Burlington at 9:54 a.m. She had a sexual assault forensic examination kit completed and a vaginal swab was submitted to the Centre of Forensic Sciences. Continuity of the swab is not in issue.
11Blood and urine samples were also taken from S. G. for the purpose of alcohol and drug analysis, which was also submitted to CFS. The continuity of these samples are not in issue.
12An analysis of the blood and urine samples indicated traces of ethanol in her urine and no drugs or alcohol detected in her blood.
13An analysis by CFS of the vaginal swab taken from S. G. detected semen on the swab.
14On February 13th, 2009, M.S. provided a sample of his DNA to police on consent in the form of a buccal swab. The continuity of this sample is not in issue.
15On March 20th, 2009, CFS analyzed the buccal swab and the DNA profile generated from the swab was compared to the semen that was detected on the vaginal swab from S. G.
16It was concluded that M.S. could not be excluded as the donor of the male DNA profile from the semen on the vaginal swab from S.G.
17The probability that a randomly selected individual unrelated to M.S. would coincidentally share the observed DNA profile is estimated to be 1 in 85 billion.
THE EVIDENCE
[18]
The Evidence
It is appropriate to start with the testimony of the housekeepers at Motel 6 as they were the first to report that something was not right with respect to the departure of three individuals from the motel.
a) Testimony of the Housekeepers, R.W. and P.W.
[19]
Testimony of the Housekeepers, R.W. and P.W.
R.W. was the Head Housekeeper at Motel 6, located at Steeles and Tomken. She provided a statement to the police on May 5, 2009 regarding her observations on October 14, 2008. She said that at around 10:30 a.m. on October 14, she was in the staff lunchroom. The staff lunchroom looks out into the back parking lot of the motel. The window curtains were drawn to get sunlight into the lunchroom.
20R.W. said that she and others in the lunchroom saw two guys, looking like they were around 21 years of age, carrying a girl out of the motel and into a car. The girl looked like she was about 16 or 17 years old. R.W. noted that the girl could not walk and that the guys were holding her under her arms on either side. She also said that she noticed that she was not wearing any shoes and that here feet seemed to be dragging. R.W. indicated that she did not get a good look at the girl’s face because the girl and the guys had their backs to her. She did remember that the girl wore a white tank top, and a black pair of pants that seemed to rest on her hips and clearly below her waist. Because of the position of the pants, R.W. said she was able to see that the girl was wearing a “dark red, sort of red” thong. On further reflection R.W. thought that she saw some lace and in one instance suggested three colours, red, white and black, though the red stood out.
21With respect to the girl’s condition, R.W. said that she did not know for sure if she was drunk. What was clear was that she could not walk by herself and it looked like she did not know where she was going. One of R.W.’s colleagues, P.W. yelled out to the guys, “Hey, what are you guys doing with her”. R.W. heard the guys respond that the girl was drunk, that her brother was going to come to pick her up and that they were waiting for her brother. Then, R.W. watched the guys put the girl in the car.
22In contrast to the girl, R.W. noted that the guys were fully dressed, they had coats, they were walking properly and they did not have any difficulties speaking.
23Once the girl was in the car, one of the guys got into the driver’s seat and drove off. The other guy came back into the motel and came out shortly thereafter holding a purse and a jacket. R.W. saw him cross the street, but she did not see much else because by then her boss was in the lunchroom and she as asking him to follow the car.
24When asked about why she was so concerned about the situation she observed, R.W.’s description summarized what she saw:
Q. Okay. What was your concern with the girl that looked young and drunk?
A. Well, because she seemed like she didn’t know where she was. Because why didn’t she have her shoes on? Why didn’t she have her coat on? All of that. I am a mom and I’m – and I, you know, kind of notice these things and …
Q. So when you were looking out the window from the lunchroom, and seeing this, what is your attention focused on?
A. My attention is focused on the girl, like, why doesn’t she have her coat on? Why doesn’t she have her shoes? The guys are fully dressed. And it’s wintertime. It’s cold out there. Why does she have a tank top? Why isn’t the pants properly on? I guess my “mom instinct” kicked in.”
25The other witness to testify on the departure of S.G. from Motel 6 was P.W. Like R.W., she gave a statement to the police on May 5, 2009 about her observations on the morning of October 14, 2008. P.W. was a housekeeper at Motel 6. She recalled that she was taking her lunch break sometime between 10:30 and 10:45 a.m, when she looked out of the lunchroom window and saw two gentlemen with a girl. She described the girl as “helpless” and without any energy. She said that the gentlemen were holding the girl under her armpits and the girl was “limp”. P.W. recalled that the gentlemen were dressed. She also remembered that the girl’s pants were down to her bum and as a result, she could also see the girl’s panties, a red thong. P.W. remembered that the girl wore a top but she could not remember what kind of a top.
26With respect to the girl’s movement, P.W. said that she did not think that the girl could walk and she could not put herself into the car. P.W. did not recall hearing the gentlemen say anything. She thought that one of them was on the phone. She watched as one of the guys got into the driver’s seat after the girl was in the car and the other guy came back into the motel. A few minutes later, the second guy came back out of the motel with a purse and a jacket.
27P.W. said that she could see the girl’s face. She said that the girl appeared dazed. Although she acknowledged that she was no expert, she said that she thought the girl might be “on drugs or something.”
28P.W. also recalled that either she or somebody else in the lunchroom called out to the boys and asked them what they were doing with the girl. However, she could not recall if the guys responded.
29In light of what the two housekeepers saw, they told their supervisor and the police was called. While that investigation began to take its course, S.G., with the support of her mother initiated her investigation. It is therefore appropriate to turn next to S.G.’s mother’s testimony.
[Text continues exactly as in the original decision.]
...
Final Disposition
[165]
Final Disposition
Given the sum of my findings, I believe it to be true that S.G. was passed out when M.S. engaged in sexual relations. S.G. did not consent to having sex with M.S. on the night of October 13/14. I am satisfied beyond a reasonable doubt that M.S. is guilty of sexually assaulting S.G.
Tzimas J.
Released: November 14, 2013
COURT FILE NO.: CRIM(J) 590/10
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.S.
REASONS FOR JUDGMENT
Tzimas J.
Released: November 14, 2013