ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11180

DATE: 2014/04/25

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL KENCH

J. Perfetto, for the Crown

F. Brennan, for the accused

HEARD: April 1, 2, & 3 2014

REASONS FOR JUDGMENT

A.J. Goodman j.

Introduction

[1] The accused is charged with one count of sexual assault contrary to s. 271 of the Criminal Code. This count relates to an incident that was alleged to have occurred on September 11, 2011 at the City of London. The accused pleaded not guilty to the charge.

[2] At the outset of trial, counsel advised that there was no issue of identity, jurisdiction, date, continuity of exhibits, and the medical evidence related to the complainant. During the course of the trial, the defence conceded the voluntariness of the accused’s statement provided to police.

Background:

[3] In September 2011, while awaiting the completion of renovations at his own home, the accused had been temporarily residing with a work colleague, Mr. Ryan Weaver in London. The essence of these charges stems from activity that occurred when the accused returned to Mr. Weaver’s home during the early morning hours of September 11, 2011.

[4] Following an evening of socializing, the complainant, Ms. I. had met Mr. Weaver at a downtown London bar called ‘Villa Bar’. Both individuals had consumed varying amounts of alcohol. Following this socializing at the bar, Ms. I. and Mr. Weaver went to the latter’s apartment having left the establishment sometime between 1:30 and 1:45 a.m. on September 11. Shortly after their arrival to Mr. Weaver’s home, the two individuals started to ‘make out’. There was some mutual sexual touching and kissing as they progressed to Mr. Weaver’s bedroom. However, after a brief period of time, whether due to the consumption of alcohol or fatigue, or a combination thereof, both individuals ceased their activity and decided to go to sleep; Ms. I. on the bed in the bedroom and Mr. Weaver on the couch in the living room.

[5] At approximately 3:00 a.m. that same morning the accused arrived at the residence and had a brief discussion with Mr. Weaver who had been asleep on the couch. The accused then proceeded to the bedroom where Ms. I. was situated. Some sexual contact occurred and the entire encounter unfolded quickly. Following this activity, at some stage, Ms. I. expressed anger and became hysterical about the event and the individual involved in these acts. Ms. I. later departed the residence and reported the matter to the police.

[6] Mr. Weaver and the accused were interviewed by police and both individuals furnished samples of their DNA for the purposes of forensic testing.

Position of the Parties

[18] Mr. Perfetto for the Crown submits that despite some frailties, the evidence of Ms. I. ought to be accepted. While Ms. I. claimed that she had passed out and had no memory of the events due to her excess consumption of alcohol, she recalled some of the details. She never provided any consent. The Crown submits that Ms. I. is not dishonest, nor did she fabricate her evidence. Even based on the accused’s evidence in conjunction with Mr. Weaver’s testimony, there was never any consent or honest but mistaken belief in consent to the sexual activity.

[19] Mr. Perfetto submits that the accused’s evidence is not logical and does not make sense in that there was never any opening or invitation for sex as he suggests. The accused did not take steps to obtain consent or was reckless in his belief. The expert evidence does not detract from the complainant’s version.

[20] Crown counsel submits that on the entirety of the evidence the charge has been established beyond a reasonable doubt.

[21] Ms. Brennan, counsel for the accused submits that on the first prong of R. v. W.(D), her client was credible and his evidence ought to be accepted. The principal Crown witness was neither credible nor reliable and her recollection of the events was non-existent. Her entire lack of recollection cannot be explained by her consumption of alcohol, when it is clear from the forensic evidence that she had not consumed alcohol to the extent that would inhibit her ability to form the capacity to consent and to recall the events. Her version was inconsistent with the testimony of the other Crown witness and her memory lapse is problematic.

[22] Ms. Brennan submits that even if the Court does not find the accused credible, the Crown has failed to establish the guilt of the accused. While her client may have been casual with his understanding of Ms. I.’s intentions and could have made more inquiries, his actions did not rise to the level of recklessness. It is submitted that the complainant provided consent, even if based on a mistaken fact. Mr. Weaver was entirely credible and his evidence corroborates the accused’s testimony on the essential issues. As such, it is submitted that the Crown has not established the essential elements of the charge beyond a reasonable doubt.

Legal Analysis

[21] It is against this background that I now turn to the specific evidence and the analytical principles that I am required to apply in determining whether the accused is guilty or not guilty of the charge he faces.

[22] All of the evidence must be considered in determining whether the Crown has made out the charges beyond a reasonable doubt. In this case, the accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to prove that the sexual act occurred as alleged by the Crown and in the manner proposed by the prosecution. It was for the Crown to prove beyond a reasonable doubt that there was a sexual assault as specified in the indictment.

[23] If the evidence of the crown witnesses is accepted, I am required to determine that the events described, coupled with the admissions, would establish the presence of all of the required legal and factual elements of the charge against the accused. Both the Crown and defence counsel focused on this as a case concerned principally with credibility and internal and external consistency, and reliability of the evidence advanced by the witnesses. It is certainly true that credibility and reliability of evidence is central to the case. However, to establish whether findings of credibility are effectively dispositive of the matter, the Court cannot lose sight of the legal components of the charges of sexual assault and the essential elements that the Crown must prove beyond a reasonable doubt before the accused can be convicted of the charge.

Reasonable Doubt

[24] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus (1997), 118 CCC 3d 24. (Cory J). Later on in the Lifchus case the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof is higher than… a balance of probabilities, yet less than proved with absolute certainty".

[25] The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered.

[26] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.

[27] In R. v. Starr (2000), 2000 SCC 40, 147 CCC 3d 449, and its prodigy, the Supreme Court indicated that in order to convict, something less than absolute certainty and something more than probable guilt is required. The Court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities in trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments, it is clear that the trial judge must apply the same standards in assessing the evidence of the accused, the evidence of the complainant and the evidence of any other witness who testified at the trial.

Assessing credibility

[28] In a case such as this the framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.). This seminal three-fold test is straightforward. First, if the trier believes the evidence of the accused, then the accused must be acquitted. However, even if I do not believe the accused’s testimony, I would be obliged to dismiss the charge(s) if it leaves me in a position of reasonable doubt. Finally, even if I am not left in doubt by the evidence of the accused, I am required to ask myself, having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of the accused.

[29] Time and time again the Supreme Court of Canada and the Ontario Court of Appeal have made it clear that the Court's verdict should not be based on a choice between the accused’s evidence and the Crown’s evidence, but on whether, based on the whole of the evidence, the Court is left with a reasonable doubt as to the accused’s guilt.[^1] It must be made indisputably clear that reaching a verdict is not simply a question of choosing the more believable of the two competing stories.

[30] The assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial, involving determinations of the truthfulness of witnesses and an assessment of their reliability.[^2] It requires a determination of whether their recollections are accurate regardless of the sincerity of their beliefs. However, reliability must be considered as well as credibility.

[31] Ultimately, there are no fixed rules to which the Court can look to guide it in its assessment of the credibility of the Crown’s witnesses in this case, and its assessment of the credibility of the accused, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately do they recall the events, the manner in which the witnesses’ perceptions have been communicated to the Court, and whether the information has been presented in a sincere, complete and truthful manner. The Court will look to the witnesses and assess whether they are being sincere and frank or biased, dishonest or careless with the truth, or reticent or evasive in the evidence that they have provided to the Court. These, and other factors, when combined, are what we describe as “credibility”.

[32] Inconsistencies in the evidence of witnesses on relatively minor matters or matters of detail are, of course, normal. They are to be expected. Indeed, I would observe that the absence of such inconsistencies may be of even greater concern, for it may suggest collusion between witnesses in their evidence or fabrication or excessive rehearsal and regurgitation of a set story. However, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.

[33] At the end of the day, the best approach to the assessment of credibility is for me to ask myself as trier the same questions that we admonish juries to ask when we ask them to assess the credibility of witnesses, the reliability of witnesses, and to determine the truth. I have asked those questions and applied those principles in determining the credibility of all of the witnesses in this case.

Sexual Assault and Consent

[34] Section 273.1 speaks specifically to sexual assault. Section 273.1(1) sets out a definition of "consent" in the context of this form of assault, and s. 273.1(2) provides a non-exclusive list of circumstances in which the defence of consent to sexual assault cannot be raised:

Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

[35] To establish the actus reus of sexual assault, the Crown must prove three elements: (i) touching or some contact (assault); (ii) the sexual nature of the contact; and (iii) the absence of consent. The absence of consent must be assessed on the basis of the complainant’s subjective state of mind towards the sexual activity in question at the time it occurred: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836 at p. 850.

[Sections continue exactly as in the source...]

[93] I am far from impressed with the accused’s behaviour and find his actions towards Ms. I. were disrespectful and repugnant. While I have suspicions that there was likely no consent provided by Ms. I., on the whole of the evidence, I am not satisfied that the elements of the offence of sexual assault have been established by the Crown on a criminal standard and I am left with a reasonable doubt. For all of these reasons, I find the accused not guilty.

A.J. Goodman J.

April 25, 2014

[^1]: See R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin (1988) 1988 8 (SCC), 44 C.C.C. (3d) 193 (SCC).

[^2]: R. v. L.F (2006), 1024 (Ont. S.C.J.).