CITATION: R. v. Maldonado and Clark, 2015 ONSC 3886
COURT FILE NO.: CR-13-40000302
DATE: 20150619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EDGAR MALDONADO
– and –
SEAN CLARK
Sharna Reid, for the Crown
David North , for Edgar Maldonado
Nathan Gorham, for Sean Clark
REASONS FOR JUDGMENT
J.D. McCOMBS J.
Mr. Maldonado and Mr. Clark each face two sexual assault charges in relation to the complainant, F.G. The assaults are alleged to have occurred in a Toronto hotel room on December 10, 2011.
The events leading up to the alleged assaults are not seriously in dispute. The complainant had met Maldonado in a bar a few months previously. They found that they had in common the fact that they are both originally from Guatemala. Maldonado was attracted to F.G. and expressed an interest in her. F.G. told him she was not interested in a relationship with him but that they could be friends. They spoke over the telephone regularly in ensuing months. F.G. was going through a very difficult time in her life. She had five children ranging in age from 18 to infancy. She and her common-law spouse, the father of her children, had separated and she welcomed a friend she could talk to. Sometimes Maldonado called her and sometimes she called Maldonado. Maldonado was single and living with his mother. He was in his late 20’s (born in 1982), and F.G. is older. Maldonado continued to ask her out but she declined, saying they should just be friends.
On one occasion, in November of 2011, she invited Maldonado to her home. Her siblings were there as well as her children and a cousin, Miriam, who was friends with Maldonado’s mother. Maldonado had been drinking when he arrived, and he said and did things in front of her siblings and her son that were inappropriate. F.G.’s brother and sister suggested that Maldonado should leave, and he did so without protest.
After that incident, F.G. and Maldonado stayed in touch. Sometimes he called her and sometimes she called him. He continued to ask her out, and about a month later, she agreed to go on a date with him. On the night of the alleged sexual assaults, he picked her up at around 10:30 p.m. at a prearranged spot near her home. She had consumed two bottles of beer at home prior to 9:00.
I pause here to mention F.G.’s alcohol consumption practices. She testified that she would occasionally drink beer. She said at trial that if she drank 6-8 beers over 4-5 hours, she would feel dizzy, have difficulty walking, and just want to go to sleep. However, in cross-examination, she acknowledged that at the preliminary hearing she had testified that she could drink up to eight beers and still be fine.
After Maldonado picked up F.G., at around 10:30, he picked up his mother from her workplace and drove her home. Maldonado asked F.G. if she minded if a friend joined them and she agreed. They picked up Maldonado’s friend “Bruno” and went to a local bar.
They arrived just before 11:00 and left just after 1:00. The bar video camera captured their activity and the apparent extent of their alcohol consumption. On the totality of the evidence, I find that F.G.’s total alcohol consumption in the bar was, was roughly 2 bottles of beer, a shot of tequila, and 4 or 5 glasses of draught beer. There was dispute about the size of the draught glasses, but I am satisfied they were standard sized, either 8 or 10-ounce.
The bar video shows that F.G. and Maldonado were drinking casually and F.G. became more disinhibited as the evening progressed. She and Maldonado behaved in a flirtatious manner toward one another, and later in the evening, F.G. got into an altercation with a man in the bar who apparently had offended her. F.G. got up and approached the man, confronted him, and swung her arm at him in an apparent attempt to strike him. Maldonado intervened in an attempt to calm F.G. down, and they left the bar as I have said, just after 1:00.
The video shows that there was almost no interaction between Maldonado’s friend Bruno and F.G.
Apart from the disinhibited behavior, neither Maldonado nor F.G. showed overt signs of impairment.
After leaving the bar, they sat in Maldonado’s car for a while, then went to a nearby hotel. Video shows them walking into the hotel lobby together at 1:50 a.m. Neither of them exhibit overt signs of impairment in the video. Maldonado checked in while F.G. stood to one side. The check-in process took several minutes. The video shows them walking to the elevator leading to the hotel rooms at 1:58 a.m. Maldonado led the way and F.G. followed.
There is no dispute that Maldonado engaged in sexual intercourse with F.G. in the hotel room. There is also no dispute that after the sexual activity, F.G. fell asleep in one of the two beds.
Maldonado discarded a condom and wrapper in the toilet and got dressed. They had been in the room less than an hour.
Maldonado then—with F.G. asleep and unaware—called two of his “drinking buddies”, Clark and Bruno, and invited them to the hotel room. They apparently were all heavy drinkers and they regularly got together and drank all night.
As I will discuss shortly, Maldonado claims that he called them because he was in a good mood and wanted to continue drinking with his regular drinking companions. The hotel video shows Bruno arriving at 3:11 a.m., and Clark arriving at 3:24 a.m. Maldonado and F.G. were still in the hotel room. F.G. was asleep.
It goes without saying that Maldonado’s decision to invite two men - one whom F.G. had met only briefly that night, and the other whom she had never met before - to the hotel room he was sharing with F.G. without first asking her for permission, was grossly disrespectful and insensitive.
F.G. testified that she has no recollection of events after consuming a few beers in the bar. She did not consent to go to the hotel and has no recollection of doing so. She has no recollection of the sexual activity with Maldonado, did not consent to it, and would not have consented because she was not attracted to Maldonado, who she said “was nothing to me”.
F.G. testified that she awoke, naked on the bed, to find Clark, a complete stranger, engaging in sexual intercourse with her. She was horrified, and reacted angrily, striking Clark several times. Bruno, the person who had been with them earlier at the bar, was also there. F.G. was confused and crying, and loudly shouted at Maldonado in Spanish (Clark does not speak Spanish). Maldonado, who had been lying on the other bed, sat up and said “what the fuck!?”. F.G. continued to shout at him in Spanish.
Seeing how upset and angry F.G. was, Maldonado asked Clark and Bruno to leave and they immediately did so. The hotel video shows them in the lobby together, leaving at 3:47 a.m., about 36 minutes after Bruno first arrived in the hotel lobby, and about 23 minutes after Clark arrived.
F.G. testified that she was furious at Maldonado, repeatedly shouting “Why did you do this to me?” “Why did they do this to me?”, “I trusted you”. She called her 18 year-old son who was at home babysitting his four siblings including her 11-month old baby. She was angry and upset and asked her son to call her siblings—her brother and sister, who lived together. Her sister called F.G. while she was still in the hotel room. She spoke to her and her brother and told them that something terrible had happened to her. She said she was in a hotel with Edgar (Maldonado) and that she would meet them at her home.
F.G. permitted Maldonado to drive her home.
F.G.’s brother testified as part of the Crown’s case. The sister was called by Maldonado. The siblings confirmed that F.G.’s complaint to them was in most respects, the same as it was when she testified: that she did not remember going to the hotel; that she woke up to find a complete stranger sexually assaulting her; that she did not want to go to the police, but her siblings persuaded her that she should.
F.G. went with her siblings to the police that morning. Appropriate steps were taken by the police to secure the hotel room before it was cleaned, so that officers from Forensic Investigative Services (FIS) could attend and gather evidence, and for the complainant to go to the hospital for appropriate samples and evidence to be taken for forensic examination. Police also obtained statements from the complainant and her siblings.
Forensic examination confirmed the presence of Maldonado’s DNA on F.G.’s left breast. A single sperm cell was recovered from the vaginal area, but the sample was too small to allow for a DNA profile.
No forensic evidence linked Clark to the case.
Ms. Terry Martin, an experienced forensic toxicologist with the Centre of Forensic Services (CFS) testified as an expert witness on alcohol consumption, absorption rates, and rates of metabolization. I found her evidence to be fair and balanced and free from any hint of bias for one side or the other. Based on F.G.’s weight at the time, the percentage of alcohol in F.G.’s urine sample provided the following day, and the amount of alcohol she likely consumed, the toxicologist provided her opinion about the range of blood-alcohol concentration (BAC) for F.G. at various times in the evening.
The toxicologist emphasized that these were estimates, because rates of absorption, metabolization, and the effects of alcohol consumption on behavior vary with the individual. She testified that regular drinkers metabolize alcohol at a faster rate and tend not to display overt signs of impairment at lower BAC levels.
Based on the toxicologist’s evidence and the other evidence concerning F.G.’s alcohol consumption, I conclude that her BAC when she left the bar was probably somewhere between 100mg% and 200 mg% - more likely in the lower end of that spectrum. Earlier in the evening, F.G.’s BAC would obviously have been quite a bit lower.
The toxicologist was permitted to give evidence concerning the effects of alcohol consumption on consciousness and memory, subject to argument as to its weight. She acknowledged the limitations of her expertise in the area of the effects of alcohol on consciousness and memory, but provided helpful information concerning the scientific research in the area.
Nothing in the toxicologist’s review of the research has persuaded me that it is likely that someone with the complainant’s BAC would experience an alcohol-induced blackout. Memory fragmentation is not uncommon for individuals when drinking, but alcohol-induced blackouts are infrequent and arise very rarely with the BAC levels experienced by F.G. I find that although she may have been disinhibited due to alcohol consumption, she was aware of what she was doing.
Based on all of the evidence, including the evidence of the toxicologist, and F.G.’s varying statements concerning when she experienced memory loss, I have difficulty accepting F.G.’s testimony that she does not remember her disinhibited behavior in the bar. I also have difficulty accepting her testimony that she does not remember going to the hotel with Maldonado or engaging in sexual activity with him.
The Defence Evidence
- Both accused testified and called other evidence in their defence. Maldonado acknowledged having had sexual intercourse with F.G. that night but insisted that it was by mutual agreement. Clark on the other hand, denied any form of sexual conduct with the complainant.
(i) Maldonado
Maldonado testified in his own defence, and also called F.G.’s sister, B.G. In many respects, B.G. corroborated her sister’s evidence, but in other respects, her evidence showed inconsistencies between F.G.’s evidence at trial and what she told her and her brother that morning.
Maldonado testified that F.G. agreed to go on a date with him. He picked her up in his car, they went to a bar, picking his friend Bruno up on the way. They had several drinks, and F.G., by her behavior toward Maldonado, as shown on the bar video, indicated that she was sexually interested in him. Maldonado testified that the decision to go to a hotel was mutual and the sexual activity was consensual.
Maldonado swore that afterwards, F.G. fell asleep in one of the two beds in the hotel room. He got up, went to the washroom, discarded a condom and wrapper in the toilet, and got dressed. F.G. was asleep.
Maldonado testified that he is an alcoholic, and at the time of the events, he was a very heavy drinker. He was in a good mood and wanted to continue drinking. He decided to call Bruno, his friend who had been at the bar earlier, and the accused Clark. They were his regular “drinking buddies”, and they often got together and drank all night. Maldonado testified that he intended to call “Amigo”, a bootlegger he had dealt with many times before, and have alcohol brought to the hotel room. He had no intention or foresight of any sexual misconduct by either of his friends, and swore that no sexual misconduct occurred.
Maldonado has a criminal record (exhibit 17). It consists of, among other offences, two drinking and driving convictions, two assault convictions, and other offences such as fail to comply and one conviction for possession of cannabis.
I had difficulty believing much of Maldonado’s evidence. One example illustrates my concern. Maldonado testified that he liked F.G. and wanted to have an ongoing relationship with her. That claim is of course, preposterous in light of the fact that shortly after their sexual activity was over and she fell asleep, he called up his drinking buddies to come to the hotel room. Maldonado’s decision to call them over while F.G. was asleep and unaware is hardly consistent with a desire to have a continuing relationship with her. His behavior in calling his friends over was disrespectful, insensitive and disgraceful and I reject his claim that he liked and respected the complainant and wanted to have an ongoing relationship with her.
Although I do not believe much of Maldonado’s evidence, I will address the issue of whether it leaves me in a state of reasonable doubt later in these reasons.
(ii) Clark
Clark’s evidence, confirmed by his parents (both of whom I found to be honest and credible), was that at the time of the alleged offences, he was a habitual drinker, particularly on the weekends, and that it was not unusual for him to meet up with Maldonado and other drinking friends and drink the night away.
Clark testified that on the night in question, he had been out for a night of drinking at a bar called Island Breeze. He had left the bar at about 2:30, about a half-hour after “last call”. He testified that he was “drunk” but not falling down drunk—that he was “feeling good”. He got a call from Maldonado, his drinking friend. They often talked a lot on the phone. Exhibit 14, an agreed statement of fact, shows that Maldonado made a four-minute call to Clark at 2:55 a.m.. Clark testified that Maldonado said he had a hotel room and to come over and they would drink in the hotel. Over the next ensuing twenty minutes or so, they spoke three times on the phone for a total of about 15 minutes (see exhibit 14).
Clark said it was not a surprise to get calls like that from Maldonado, because they would often get together and drink all night. Although it was unusual for it to be in a hotel room, it was not the first time either. Clark said he assumed they’d get a bootlegger as they had done before. He got into a cab and went to the hotel. He did not know whether anyone else was there.
Clark testified that he went to the room (video shows him arriving at the elevator at 3:24), he called Maldonado to check the room number (see agreed statement of facts—one minute call made at 3:24). He took the elevator to the third floor, knocked and was let into the room. The TV was on. Maldonado was lying clothed on one bed, Bruno (whom he had met casually once or twice before) was sitting on the edge of that bed. Under the covers of the other bed, Clark saw a female sleeping. He asked who she was and Maldonado said she was “from the bar”.
Clark testified that he sat on the corner of the bed facing away from where F.G. was sleeping and was talking with Maldonado and Bruno for several minutes, when F.G. suddenly woke up and began screaming in Spanish. She was obviously very angry and upset. She hit him on the left shoulder from behind, then he jumped up from the bed. She also jumped up from the bed and while holding a blanket around her, continued to strike at him while simultaneously screaming at Mr. Maldonado in Spanish, a language Clark does not understand. Although he didn’t understand the words, it was obvious that the complainant was very angry and upset at Maldonado and at him and Bruno. Clark described F.G. as “freaking out”.
Clark adamantly insisted that he did not touch the complainant at all, much less in a sexual way. He acknowledged the possibility that he may have moved and startled her and caused her to wake up, but certainly nothing he did was sexual in any way.
Clark was not shaken in cross-examination.
Maldonado immediately told Clark and Bruno that they had better leave. They did so. As I noted earlier, the hotel video shows that Clark entered the elevator at 3:24 and exited 23 minutes later, at 3:47.
Clark testified that after he left, he was confused and upset. He hadn’t done anything wrong, and wanted to know more about why the complainant had reacted that way. He called Maldonado repeatedly that night to discuss what had happened. He testified that Maldonado told him that F.G. was very upset with him (Maldonado) for calling two men over to the room without her permission, and that she thought he (Clark) had “abused” her sexually.
Clark testified that he was very upset and concerned because he had done absolutely nothing wrong. All he had done was to sit on the edge of the bed where F.G. was sleeping. In their many telephone discussions that evening, Maldonado tried to reassure Clark that it had been a big misunderstanding. Clark testified that he was “upset”, “pissed off”, “it’s not every day that someone accuses you of doing something like that”.
Clark testified that he kept telling Maldonado to make sure that F.G. understood he had done nothing wrong. Clark testified that he called Maldonado a lot of times to make sure he had calmed her down and that she knew he had done nothing wrong.
Clark testified that he thought Maldonado had explained that to her – that she eventually realized he didn’t do anything and that he therefore didn’t think anything was going to happen.
Clark testified that he was shocked when police called him a couple of months later. He turned himself in and cooperated with authorities.
Clark, as far as I am aware, has no prior criminal record.
The Applicable Legal Principles
(a) The Presumption of Innocence and the Burden of Proof Beyond a Reasonable Doubt
In a criminal trial, every accused person is entitled to be presumed innocent. The presumption of innocence is displaced only when the Crown discharges the onus upon it to establish guilt beyond a reasonable doubt. The requirement of proof beyond a reasonable doubt is a much higher standard of proof than proof on a balance of probabilities - it is much closer to absolutely certainty.
In the end, I must be “sure” of the guilt of the accused, based on the evidence, before a conviction may be registered. If the evidence does not reach that high standard of proof, the accused is entitled to a verdict of not guilty. Put another way, if the evidence shows that the accused are probably guilty, they are entitled to be found not guilty.
That is why, in a criminal trial, the triers of fact, whether they be judges or juries, must never forget that the outcome cannot be a credibility contest between the complainant and the accused. Such an approach undermines the core principles of the presumption of innocence and the requirement of proof beyond a reasonable doubt: R. v. Vuradin, 2013 SCC 38 at para 21.
The issue is never as simple as whose version is more likely to be true. Instead, the issue is whether, on the totality of the evidence, the Crown has succeeded in displacing the presumption of innocence with proof beyond a reasonable doubt to the point where each member of the jury or, as in this case, a judge sitting alone, is able to say “I am sure, based on the evidence, of the guilt of the accused.”
This case is emotionally charged, both for the complainant and for the two accused. The stakes are obviously very high.
Victims of sexual assault are often reluctant to come forward with their complaints, and it is not hard to understand why. In giving evidence, sexual assault complainants are required to testify in an unfamiliar and intimidating public forum about matters of a deeply personal nature. Then their evidence is subjected to vigorous scrutiny under cross-examination. Their conduct and their decisions are put under a microscope. Their prior statements, whether in court, to police, or to family members, are scrutinized for inconsistencies. Understandably, complainants often feel as if they are the ones on trial, rather than the person or persons accused of abusing them. I am acutely aware of how painful the criminal trial process is for sexual assault complainants, and why they often feel that the process is unfair to them.
But sympathy for the position of the complainant must never lead to a relaxation of the burden upon the Crown to prove guilt beyond a reasonable doubt. That burden is a constitutional safeguard to protect the integrity of the justice system and to guard against wrongful convictions.
My responsibility as the trial judge is to remain focused on the core issue: whether the Crown has displaced the presumption of innocence with proof beyond a reasonable doubt.
I pause here to point out that the Crown does not allege that the complainant was drugged. Indeed, forensic testing excludes that possibility. Further, the Crown does not allege that the complainant lacked the capacity to consent. Instead, the Crown position is that the evidence proves beyond a reasonable doubt that F.G. did not consent to the sexual activity with Maldonado, and with respect to Clark, the issue is whether the Crown has proved that there was sexual contact with F.G. If so, it is acknowledged that F.G. did not consent.
Finally, counsel agree that the defence of honest but mistaken belief in consent is not engaged in this case.
(b) The Core Issues
- The outcome of this case turns on determination of two issues:
1. Has the Crown proved beyond a reasonable doubt that Maldonado had sexual contact with F.G. without her consent?
2. Has the Crown proved beyond a reasonable doubt that Clark had sexual contact with F.G.?
- I am aware that both Maldonado and Clark face charges under s. 272(1)(d) as parties to the other’s alleged sexual assault, but the merits of those allegations do not arise unless the two issues I have identified are resolved in favour of the Crown. I will therefore deal with those two issues first.
Discussion and Conclusions
In order to convict either accused, I must be satisfied beyond a reasonable doubt that the complainant’s account is reliable. Many factors can impact on the reliability of even an honest witness’s evidence. Factors such as embarrassment, alcohol ingestion, faded memory, and a host of other factors, can impact adversely on memory and on reliability.
The complainant had every reason to be shocked, confused, and angry when she woke up in the hotel room to find that Maldonado had invited two other men there. One of them was Bruno, a virtual stranger whom she had met earlier that night for the first time. The other was Clark, someone she had never seen before. Her sense of betrayal and outrage is completely understandable in the circumstances.
In her evidence in chief, F.G. testified in a straightforward and plausible manner. She was understandably uncomfortable and embarrassed having to give evidence in court, but her evidence was clear and apparently credible and reliable.
However, when she was being cross-examined, particularly about her prior inconsistent statements, the effects of her alcohol consumption, and the video evidence from the bar and the hotel lobby, she very often became combative and her answers were not responsive to the questions put to her. She repeatedly asked what the questions had to do with whether she had been abused by the two accused. On at least one occasion, she refused to look at the video when counsel took her to a particular part of it.
Defence counsel conducted vigorous but appropriate cross-examinations, but their efforts to get answers to questions related to F.G.’s conduct or prior inconsistent statements, or implausibilities in her evidence were often met with anger, tears, a raised voice, and on occasion, refusal to answer the questions.
While I understand and sympathize with the position the complainant was in, her emotional outbursts and evasiveness made it difficult to assess the reliability of her core allegations: that she had blacked out and ended up in a hotel room without her knowledge or consent, that Maldonado abused her when she was unaware of it, and that she awoke to find Clark having sexual intercourse with her.
The complainant asserts that she blacked out during the evening after a few drinks at the bar and has no memory of the flirtatious activity toward Maldonado that was captured on videotape, or going to the hotel with him, or engaging in sexual intercourse with him, much less with her consent. She went to police the next morning after speaking to family members. As I noted earlier, police took steps to secure the hotel room before cleaning staff had entered. FIS officers combed the room for evidence. The complainant was taken to hospital where she provided the relevant samples for testing. Samples from the hotel room and from the complainant were sent to CFS for forensic testing.
Nothing was found that supports a conclusion that the complainant was drugged, and therefore her purported loss of memory remains unexplained. She said she had two Corona beers at home before going out; the bar video shows that she had 4-5 glasses of beer, two Coronas, and a shot of tequila. Based on the evidence which I accept, I find that the beer glasses were normal size, 8 -10 ounces. The complainant does not appear intoxicated on the video from the bar or the hotel lobby. I appreciate that a person can be under the influence of alcohol and show no outward signs of intoxication, but the absence of overt symptoms of impairment is a factor that the accused are entitled to have me take into account.
The bar video shows the complainant drinking at a relatively moderate pace. She becomes more disinhibited as the evening progresses, but does not appear to lack awareness of her environment or what she is doing. She at one point becomes angry at a customer of the bar, a person identified only as Carlo, and she gets up and confronts him, swinging her arm in his direction. Maldonado gets up, makes an effort to calm her down, and they leave shortly thereafter.
At the point of their departure from the bar, and based on the totality of the evidence including the evidence of the toxicologist, and the complainant’s own evidence about the normal effects of alcohol on her, I can only conclude that she was aware of her surroundings and in possession of her faculties when she left the bar with Maldonado.
Because the Crown is not in a position to assert that the complainant’s purported lack of memory was due to drugging, the Crown is left with the complainant’s assertion that she blacked out as a result of the alcohol she consumed. The problem with the Crown’s position is that is does not accord with the complainant’s stated history concerning how she reacts to alcohol consumption, nor does it accord with the toxicologist’s evidence.
F.G. was unaware of the existence of the bar and hotel videos when she first spoke to her family and then to police. Indeed, it was not until the preliminary hearing that she first learned of the existence of the bar video.
I pause here to emphasize a very important point. As the complainant herself repeatedly stated during her often combative responses to cross-examination, she is an adult and although she doesn’t remember her behavior in the club, she was perfectly entitled to behave that way and it does not entitle anyone to abuse her without her consent. I agree completely. It does not follow that because she was behaving in a flirtatious manner toward Maldonado that she therefore must have consented to the sexual activity that occurred later. To draw that inference would be to endorse stereotypical assumptions that have been thoroughly and rightly discredited.
F.G.’s behavior in the bar is relevant for the limited purpose of evaluating her assertion that she does not remember it. The evidence does not support an inference that she experienced an alcohol-induced blackout in the bar, and her BAC levels make her claim of memory loss a factor to consider in evaluating the reliability of her evidence.
I found the complainant’s evidence to be believable in many respects. I do not reject her evidence. However, I have grave doubts about the reliability of her evidence for the reasons I have stated.
Both accused have elected to testify and to call evidence in their defence. If the accused are believed, they must be acquitted; if they are disbelieved, but their evidence raises a reasonable doubt, they must be acquitted; and if their evidence does not raise a reasonable doubt, I must determine whether on the basis of the evidence I do accept, guilt is proved beyond a reasonable doubt.
Although I do not accept the evidence of Maldonado in its entirety, his testimony has left me in a state of reasonable doubt. With respect to Clark, I found his evidence to be credible. He may well be telling the truth. At the least, his evidence leaves me in a state of reasonable doubt.
It follows that the Crown has failed to displace the presumption of innocence with proof beyond a reasonable doubt. Mr. Maldonado and Mr. Clark are therefore found not guilty on all charges.
J.D. McCOMBS J.
Released on June 19, 2015