ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. J.F., 2015 ONSC 3136
COURT FILE NO.: CR-14-280
DATE: 20150515
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
J.F.
Alan Risen, for the Defendant
Defendant
HEARD: May 11, 12, 13 and 14, 2015
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] J.F., a young adult man, is charged with having sexually assaulted his best friend, C.S., a young adult female. It is alleged that a night of drinking alcohol and smoking marihuana at J.F.’s office Christmas party at a hotel in Blue Mountains in December 2011 led to the accused having sexual intercourse with C.S. while she was asleep and, thus, without her consent.
[2] There is no doubt that they had sex. The issue is consent.
[3] This trial took place in Owen Sound, without a jury, on May 11, 12 and 13, 2015. Closing submissions were delivered by counsel on May 14.
[4] Two voir dires were held. The first, prior to the start of the trial, dealt with the admissibility of J.F.’s statement to the police. I ruled that the statement was admissible – those Reasons are reported at R. v. J.F., 2015 ONSC 2889. The second, held during the trial, dealt with the admissibility of proposed expert opinion evidence on behalf of the defence by Professor Timothy Moore, psychologist (“Professor Moore”). I ruled that the said evidence was admissible – those Reasons are reported at R. v. J.F., 2015 ONSC 3067.
[5] At trial, I heard from two witnesses on behalf of the Crown – C.S. and the investigating police officer, Detective Coulter. I heard from two witnesses on behalf of the Defence – Professor Moore and the sister of the accused. The accused did not testify.
[6] At the end of closing submissions, I reserved my Judgment.
[7] A publication ban is in place regarding the name and identity of the complainant.
II. The Charge, Its Essential Elements and the Basic Legal Principles
[8] The formal charge reads:
Her Majesty the Queen presents that J.F., between the 17th day of December 2011 and the 18th day of December 2011, at the Town of Blue Mountains, Central West Region, did commit a sexual assault on C.S., contrary to section 271 of the Criminal Code of Canada.
[9] For me to find J.F. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:
i. that he intentionally applied force to C.S.;
ii. that C.S. did not consent to the force that J.F. applied;
iii. that J.F. knew that C.S. did not consent to the force that J.F. intentionally applied; and
iv. that the force that J.F. intentionally applied took place in circumstances of a sexual nature.
[10] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of sexual assault.
[11] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.F. guilty of sexual assault.
[12] Counsel agree that the case boils down to essential element number two – consent. The evidence from the Centre of Forensic Sciences (“CFS”) establishes beyond a reasonable doubt that J.F. and C.S. had sexual intercourse. That satisfies essential elements one and four. And there is no argument that honest but mistaken belief in consent (essential element number three) is a live issue; either the complainant was awake during the sex and consented to it, or she was asleep and could not have consented.
Presumption of Innocence
[13] J.F. is presumed to be innocent of the charge. He has no burden of proof. The burden of proof rests entirely with the Crown. There is no requirement that the accused testify at trial.
[14] Although the accused did not testify at trial, there is evidence from him in the form of his police statement. If and where that evidence is exculpatory (that is, amounts to evidence by J.F. that he did not commit the offence charged), if I accept that evidence, then I must find the accused not guilty. Even if I do not accept that evidence, if it leaves me with a reasonable doubt, I must find the accused not guilty. Even if I am not left in a reasonable doubt by that evidence, I must still acquit the accused unless, on the totality of the evidence at trial that I do accept, I am persuaded of his guilt beyond a reasonable doubt.
III. The Evidence at Trial
The Evidence of the Complainant, C.S.
[15] Now 25 years old (21 years of age at the time of the alleged offence), C.S. lives with her parents in Whitby, Ontario. She currently works as a hairstylist at a salon in Whitby. In December 2011, she was going to school and working as an apprentice hairstylist at a salon in Oshawa.
[16] C.S. and the accused were friends in high school in Whitby. After high school, they became closer friends. By December 2011, they were best friends. According to C.S., it was always a non-romantic, non-sexual relationship.
[17] In the summer of 2011, J.F. asked C.S. to be his girlfriend. She declined.
[18] In August 2011, the accused invited C.S. to his office Christmas party at a hotel in Blue Mountains. J.F. was working with Mercedes in Whitby. She accepted the invitation. She knew that it was an overnight thing, and she knew that they would be sharing the same hotel room. She was fine with that. They were best friends. She trusted him.
[19] On December 17, 2011, they drove up together to Blue Mountains. They were in J.F.’s car, with him driving. On the way, they stopped at a liquor store, and J.F. bought some spiced rum. En route, they shared one marihuana joint (about one gram) in the car.
[20] Upon checking in at the hotel, they went to their room. She saw then that there was only one bed. She was fine with that. She changed in to dinner clothes in the bathroom, and he changed in to a suit outside of the bathroom.
[21] J.F. poured her a strong drink of rum and coke – maybe three ounces of rum (she did not measure it).
[22] They then went to his co-worker’s hotel room. She brought her drink with her. It was too strong, so she did not finish it. She drank about half of it.
[23] Someone poured her a long island iced tea. It was very strong. She drank about half of it. She also had two jello shots.
[24] They then went to the organized dinner. It was buffet style. She drank two glasses of wine during dinner. After dinner, she had two vodka cranberry drinks.
[25] The above mentioned alcohol was consumed by C.S. between about 6:30 p.m., when they arrived at the hotel, and 9:45 p.m. or so, when they left the dinner area and went to a suite which belonged to a member of the Mercedes management team (she assumed). There, she drank some of a very strong rum and coke poured for her by the accused. She also shared with others a large marihuana joint. She had a few puffs. Everyone was drunk, including her and the accused.
[26] After about one hour at the suite, she was “really drunk” and felt that she would pass out if she did not get to bed. J.F. helped her back to their hotel room.
[27] She put her pajamas on in the bathroom (shorts and a golf shirt).
[28] Prior to the dinner, they had already pulled down the fully-made bed which was on the wall. She went to bed. She was asleep in seconds.
[29] She next remembers waking up the next morning at about 7:30 a.m. Her vagina was sore, her underwear was twisted and her stomach was sticky. “I felt like someone had sex with me”, she testified at trial.
[30] J.F. woke up about one hour later. That morning, he said to her a few times how “out cold” she was the night before.
[31] They went to brunch and then drove back home together. She did not talk much. After December 18, 2011, she never communicated again with the accused.
[32] On December 19, she wrote an exam for school and then attended at a hospital in Oshawa to have a sexual assault kit completed. She had not showered since the night of December 17/18.
[33] On March 12, 2012, she reported the matter to the Durham Regional Police. The investigation was then taken over by the Collingwood OPP.
[34] In cross-examination, C.S. denied that she and J.F. had snuggled or cuddled on the couch at his house, prior to December 17, 2011.
[35] In cross-examination, some inconsistencies in the evidence of C.S. came to light in terms of her precise alcohol and marihuana consumption during the evening on December 17. For example, she had said in her police statement that she had a jello shot (not two) and a glass of wine (not two). At the preliminary inquiry, she testified that she had a jello shot (not two). And she testified that she had a “sip or two” of the long island iced tea (not half or about half). And she had testified at the preliminary inquiry that she was not sure if they had smoked a joint en route to Blue Mountains before arriving at the hotel. And she had told the police in her statement that, in their hotel room before dinner, J.F. had poured them both “a bit” of a drink. And she testified at the preliminary inquiry that she had one puff of the joint at the suite after dinner (not three puffs).
[36] In any event, C.S. acknowledged in cross-examination that the marihuana joint that they shared in the car on the way up to Blue Mountains had not much effect on her as she was a regular user of marihuana prior to December 17.
[37] In cross-examination, C.S. admitted that she had, on multiple occasions prior to December 17, 2011, drank as much or more alcohol and consumed as much or more marihuana than she did on December 17 but still was able to make decisions and, for example, get home from a party by walking or calling a taxi and go to bed.
[38] C.S. estimated that, on a scale of 0 (completely sober) and 10 (unconscious), regarding the evening of December 17, 2011, she would rate her level of intoxication at 6.
[39] C.S. acknowledged in cross-examination that she and J.F. intended, before dinner, to share the same bed that night at the hotel in Blue Mountains. She quickly added, however, that there was no plan to have sex.
[40] In cross-examination, C.S. testified that she does not remember having sex with the accused, although she has had flashbacks of him on top of her and them having sex. Those flashbacks started after she had some counselling.
[41] “I would not have consented to have sex with him”, C.S. declared, in cross-examination.
[42] According to C.S. in cross-examination, it is possible that her flashbacks are memories of him having sex with her at Blue Mountains. Those flashbacks include her thinking that she heard J.F. say to her “do you want to fuck?”
The Evidence of Detective Constable Coulter of the OPP (“Coulter”), including the Police Statement of the Accused
[43] Just prior to Coulter testifying, the two CFS reports were marked Exhibits. It was agreed that nobody from the CFS needed to testify.
[44] The first report was generated from the submissions after C.S. went to the hospital. The second report was the result of J.F.’s DNA sample being submitted to the Centre.
[45] Those reports, together, establish, beyond a reasonable doubt, that J.F. and C.S. had vaginal sexual intercourse.
[46] J.F. gave a statement to Coulter on August 31, 2012. It was audio and video recorded. The recording and the transcript were marked Exhibits at trial. During the course of the statement, J.F. wrote a letter of apology to C.S. and gave to the police a consent DNA sample. The letter and the consent DNA sample form were marked Exhibits at trial.
[47] Much of the content of the statement is summarized in my Reasons on the admissibility voir dire. Those Reasons are reported at R. v. J.F., 2015 ONSC 2889. There is no need to go in to the statement at length again here.
[48] It is sufficient to note that J.F. said in the statement, numerous times in different ways, that he had little if any memory of having sex with C.S. He had experienced some flashbacks and dreams. The penultimate admission was that he thinks that he might have had sex with her while she was sleeping.
[49] The letter of apology is not an explicit admission that J.F. sexually assaulted C.S. or that he had sex with her while she was sleeping. It is, unequivocally however, an admission of some form of wrongdoing and a heartfelt apology.
[50] The overriding emotion that is reflected in the statement and in the apology letter is a sense of regret and remorse.
[51] Although I outlined above the standard instruction regarding evidence of an accused, it does not strictly apply here because the statement of J.F. to Coulter is not capable of being considered exculpatory on the key issue to be decided. In other words, there is no evidence from J.F. that C.S. consented to having sexual intercourse with him.
The Evidence of Professor Moore
[52] I have a lot of respect for Professor Moore in that he was helpful to the Court on matters well outside my knowledge base, he was candid, he did not attempt to overstate or exaggerate his evidence and he was careful to stay within the parameters of my ruling on the admissibility of his evidence. He was, in short, a very good expert witness.
[53] There are three major takeaways from the expert opinion evidence of Professor Moore.
[54] First, false memories are a real phenomenon. They can be created by outside sources or entirely within the mind of the person himself. They can be vivid and detailed. And they can lead to feelings of remorse for something that actually never happened.
[55] Second, it is possible that the seemingly inculpatory admissions made by J.F. to Coulter during the statement were the product of false memories rather than true memories of actual events.
[56] Third, “I don’t know whether his memories are genuine or illusory” – that was the key piece of evidence from Professor Moore. It came in re-examination by Mr. Risen. The Professor can speculate one way or the other, however, to really understand what J.F. meant in the statement by referring to “flashbacks” and “dreams”, as examples, according to the Professor, it would likely be helpful to hear from J.F.
The Evidence of the Sister of the Accused
[57] The sister of J.F., an impressive young lady who is going to university in the United States and has no criminal record, contradicted the evidence of C.S. on one point.
[58] According to J.F.’s sister, there was an occasion in December 2011 when she saw C.S. and the accused cuddling on the couch in the garage of J.F.’s house. It looked like they were boyfriend and girlfriend, although there was nothing sexual about it.
IV. Analysis
[59] Of course, I may accept all, some or none of a person’s evidence.
[60] The only issue to be decided is whether the Crown has proven beyond a reasonable doubt that C.S. did not consent to having sex with J.F.
[61] I am not concerned about the inconsistencies in the evidence of C.S. about her degree of alcohol and marihuana consumption on December 17, 2011. Nor am I concerned that she is exaggerating her degree of intoxication. Nor am I concerned about the contradiction between her evidence and that of the sister of J.F.
[62] I find, on the whole, that C.S. was a credible and reliable witness.
[63] With regard to the amount of alcohol that she drank and marihuana that she smoked, the inconsistencies between what she said at trial and what she said before trial are minor. And they are reasonably explained by the fact that, when speaking with the police and testifying at the preliminary inquiry, she was not necessarily focused on what exactly she had to drink and how many precise puffs she took on a joint but rather on her allegation that she had been raped in the middle of the night by her best friend.
[64] The exact number of drinks, or partial drinks, and the precise number of puffs on a joint are immaterial.
[65] Regarding the cuddling or snuggling on the couch, I accept the evidence of J.F.’s sister. She saw what she saw. The fact that C.S. denied it in her evidence does not trouble me. Again, it is a relatively minor and immaterial item. I see no basis to conclude that C.S. was deliberately misleading the Court in an effort to try to bolster her evidence that she did not consent to having sexual intercourse with J.F. at Blue Mountains. Two best friends snuggling on a couch in front of the television, in a garage with nowhere else to sit comfortably, is a far cry from vaginal intercourse. I think that C.S. is simply mistaken in saying that she did not cuddle or snuggle with J.F. on the couch, on one occasion, 3.5 years ago. It is an understandable mistake.
[66] I accept that C.S. has partied hard in the past. I accept that she was no stranger to booze and drugs before December 17. I accept that she had consumed 6 or 7 drinks and a couple of grams of marihuana, many times, before going to Blue Mountains and yet was able to do things like walk, call a taxi, get home, get inside the home, and go to bed. But one can be very intoxicated and still do those things. We are not talking about rocket science.
[67] The cross-examination of C.S. does not cause me to think that C.S. was less intoxicated than she says she was on the night in question. I believe that she barely remembers getting back to the hotel room from the suite. I believe that J.F. helped her walk by keeping her sturdy on her feet. I believe that she fell asleep like a rock. Falling asleep is likely the wrong term – she passed out, quickly.
[68] In any event, it is not necessary to resolve the question of whether, had she been awake at the time of the sexual encounter, C.S. was too intoxicated to have the capacity to consent to vaginal intercourse with J.F. That is not the theory of the Crown. The Crown submits that C.S. was asleep when J.F. had sex with her.
[69] Finally, I am not troubled by the evidence of C.S. that she has had some flashbacks of J.F. having sex with her and hearing him say “do you want to fuck?” That does not cause me to have a reasonable doubt as to whether she consented.
[70] There is no reliable evidence that C.S. has any actual memory of J.F. being on top of her and having sex with her. The fact that she said in cross-examination that it is possible that the image of J.F. being on top of her and asking if she wanted to have sex with him is real as opposed to imagined is of no assistance to me. I cannot make reliable findings of fact based on mere possibilities. I prefer the evidence of Professor Moore, albeit with regard to J.F.’s flashbacks, that those could be real or illusory. As Mr. Risen stated eloquently in his final submissions, “flashbacks could mean anything”. If that is true about J.F.’s flashbacks, then the same can reasonably be said about C.S.’s flashbacks. It is pure speculation to assert that there is something about J.F.’s flashbacks which make them more like fantasy than those experienced by C.S.
[71] It is likely that I would have been persuaded of J.F.’s guilt, beyond a reasonable doubt, even absent a consideration of his admissions in his statement to Coulter and in the apology letter. The statement and the letter simply add to my degree of certainty.
[72] I must be careful not to scrutinize the evidence of C.S. more generously than the evidence of J.F., by way of his police statement. Thus, with regard to the seemingly inculpatory admissions made by J.F. which appear to be based on flashbacks, I place no reliance on those comments. That includes the comments at page 27 of the transcript of his statement to Coulter, wherein the accused states that C.S. was definitely asleep, he thinks, and that he thinks that he might have had sex with her while she was asleep.
[73] It would be unfair of me to rely upon those comments by J.F. as proof of what he actually remembers but, at the same time, discount what C.S. testified at trial has come to her in flashbacks.
[74] Further, the evidence of Professor Moore causes me to be wary of relying upon those admissions made by J.F. in his police statement.
[75] There are, however, other comments made by J.F. to Coulter which were not highlighted by Professor Moore as potentially problematic, which do not appear to be based on flashbacks or dreams, and which provide some circumstantial evidence that C.S. did not consent to what happened between the two of them.
[76] For example, near the top of page 12 of the transcript, J.F. states that “[i]f I could talk to her right now I would tell her how sorry I am and what actually went on”. Unless she was asleep at the time of the sexual intercourse, why would the accused need to tell C.S. what actually went on? That admission by the accused suggests to me that he knows that C.S. is not aware of what went on in terms of the sexual encounter. She is not aware because she was asleep.
[77] Further, although I accept the evidence of Professor Moore that false memories can create very genuine feelings of remorse, I find it highly unlikely that the degree of J.F.’s guilt, regret, remorse and apologetic and self-deprecating attitude throughout the entire interview with Coulter and throughout the entire letter to C.S. would be as strong and unwavering as it is, unless the accused had some true memory of having sexually assaulted his best friend.
[78] By itself, the statement of J.F. could not amount to proof beyond a reasonable doubt. It is simply one piece of the puzzle. To the extent that it is reliable, elaborated upon and qualified above, it is incriminating.
[79] I will now deal with the three key submissions made by the Defence in closing arguments.
[80] First, it is submitted by the Defence that the evidence at trial does not support that C.S. was incapable of consenting to sexual intercourse with J.F. It is not necessary for me to resolve that issue. This is not a capacity to consent case. It is not alleged by the Crown that C.S. was too drunk and/or too high on marihuana to be able to consent.
[81] Second, it is submitted by the Defence that the evidence at trial does not support that C.S. was asleep when the sex happened. I disagree.
[82] I accept the evidence of C.S. that, after hitting the bed and falling asleep within seconds, her next memory is of waking up in the morning with a sore vagina, twisted underwear and a sticky stomach. She did not go back to sleep. Thus, the sexual intercourse must have happened when she was asleep. And, but for the flashbacks which I place no reliance upon for the reasons outlined above, there is no evidence that C.S. ever woke up during the middle of the night.
[83] I also accept the evidence of C.S. that the accused said to her, repeatedly, on December 18 that she was “out cold” the night before. That is further evidence in support of the fact that she was asleep throughout the night.
[84] Third, it is submitted by the Defence that the circumstantial evidence at trial does not establish, beyond a reasonable doubt, that C.S. did not consent to the sexual intercourse between her and the accused. I disagree.
[85] It must be remembered that consent means the “conscious agreement of the complainant to engage in every sexual act in a particular encounter”. R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, at paragraph 31. At paragraph 66 of the same decision, the Supreme Court of Canada stated that the definition of consent for sexual assault requires “actual active consent throughout every phase of the sexual activity”.
[86] Where there is some evidence capable of supporting the possibility that the complainant went to sleep, woke up and then consented to sexual activity, it is incumbent on the trial judge to adequately explain why that alternative is rejected in favour of a finding of fact that the complainant remained asleep during the sexual encounter and why that possibility does not raise a reasonable doubt as to whether there was a lack of consent. R. v. Garciacruz, 2015 ONCA 27, [2015] O.J. No. 264 (C.A.), at paragraph 67.
[87] That obligation on the part of the trial judge applies even where the complainant, because of amnesia or a blackout or for some other reason, does not remember consenting after waking up. R. v. Garciacruz, supra, at paragraphs 67 and 74.
[88] In our case, there is simply no evidence that is capable of supporting the possibility that C.S. woke up at some point and, although she does not remember now, consented to having sex with J.F. I have already explained why I reject the invitation by the Defence to place any reliance on the complainant’s flashbacks. It is unreasonable to ask the Court to ignore J.F.’s flashbacks but rely upon the complainant’s.
[89] Here, the evidence that C.S. did not consent to the sexual intercourse with J.F. is circumstantial. Thus, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that C.S. did not consent. That is a high standard. And that high standard has been met on these facts.
[90] At paragraph 69 of its decision in Garciacruz, supra, the Court of Appeal for Ontario stated the following.
[69] In the absence of direct evidence on the issue of consent, a court can draw inferences from a complainant’s pre-existing attitudes and assumptions regarding the period during which she has no recollection. In appropriate cases, the court can conclude that the complainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, she clearly would have refused to consent. This type of inference would support the trial judge’s finding of that the complainant was asleep and incapable of consenting.
[91] I accept the evidence of C.S. that she was never romantically interested in J.F. In fact, she had declined his invitation to become boyfriend and girlfriend. And I accept her evidence that she would not have consented to having sex with the accused at Blue Mountains. And I find that her actions and behaviour towards J.F. the next day and since are consistent with her not having consented to the sexual intercourse with the accused. Put bluntly, aside from the fact that I find C.S. to have been a generally credible and reliable witness, there is no evidence to the contrary (aside from, perhaps, the flashbacks which I have already indicated cannot be relied upon).
[92] That statement is not meant to suggest that the Defence has any burden of proof, however, when the evidence from a credible and reliable witness is that she does not remember the sexual encounter because she was asleep, in the absence of anything that suggests otherwise, it is virtually inevitable that a finding of fact will be made that the complainant was asleep during the sex.
[93] In his final submissions, Mr. Risen posed this question: “can we exclude the possibility that it was consensual?” With respect, that is not the proper question. Very few things are ever impossible. The Crown is not required to prove essential elements of an offence to the degree of absolute certainty.
[94] What is required is that the Crown prove the essential elements of the offence beyond a reasonable doubt. As we tell juries, I have to be sure.
[95] I am sure that C.S. did not consent to having sex with J.F. She was asleep at the time.
V. Conclusion
[96] On the totality of the evidence at trial, I am satisfied that the Crown has proven, beyond a reasonable doubt, each essential element of the offence.
[97] In the middle of the night on December 17/18, 2011, at Blue Mountains, J.F. had vaginal intercourse with C.S. while she was asleep and without her consent.
[98] The verdict is guilty.
[99] I wish to thank both counsel for their able assistance throughout the trial.
Conlan J.
Released: May 15, 2015
CITATION: R. v. J.F., 2015 ONSC 3136
COURT FILE NO.: CR-14-280
DATE: 20150515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
J.F.
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: May 15, 2015