ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 26/14
DATE: 20150921

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

IOUDJIN JADOV
Respondent

Darren Hogan, for the Crown

Anthony Marchetti, for the Mr. Jadov

HEARD: May 15, 2015

Trotter J.

INTRODUCTION

[1] This is a Crown appeal from an acquittal in a sexual assault case.

[2] Ioudjin Jadov was charged with sexually assaulting C.C., contrary to s. 271 of the Criminal Code. It was admitted that sexual intercourse occurred. The question was whether C.C. consented to the activity, and the role that alcohol might have played in that decision.

[3] The Crown argues that the learned trial judge, Madam Justice Rutherford of the Ontario Court of Justice, misapprehended the evidence, misapplied the sexual assault provisions and rendered an “unreasonable” acquittal. For the following reasons, the appeal is dismissed.

SUMMARY OF THE FACTS

(a) The Complainant’s Account

[4] The complainant, C.C., was 19 years old at the time. She was staying at a shelter called Touchstone in Toronto. She met Mr. Jadov there. He was not a resident of Touchstone but he sometimes went there to do laundry and have a meal.

[5] On October 17, 2011, C.C. returned to the shelter in the late afternoon. Mr. Jadov was there. He invited C.C. to come to the room that he rented to hang out. She said that they took public transit to his place and picked up a 26-ounce bottle of vodka and some mix along the way.

[6] When they arrived at his room, they started to drink the vodka and watched videos on C.C.’s laptop. They would periodically climb out his window and onto the rooftop of another building to smoke cigarettes. Mr. Jadov poured the drinks that night. C.C. did not pay attention to how much vodka was in each of her drinks, nor how many drinks she consumed. She said that the two smoked marijuana that Mr. Jadov had already.

[7] The two watched videos while sitting on Mr. Jadov’s bed. C.C. could not recall if there was any physical contact between them. She said she felt dizzy and, at some point, passed out. Asked by the Crown whether she fell asleep or passed out, C.C. said, “I just remember when I woke up.” When she woke up, she did not have any clothing on the lower part of her body and she detected foreign excretions in her vaginal area. Mr. Jadov was not in the room. He had gone to the washroom. C.C thought he had been gone for a short period of time.

[8] As C.C. got dressed, Mr. Jadov came back into the room. C.C. asked him what had happened and he said words to the effect that they had sex and he had ejaculated inside of her. C.C. said she wanted to go home and asked Mr. Jadov to pass her boots to her, but he refused. C.C. said that she was still “really drunk” and he wanted her to “sleep it off.” C.C. called Touchstone to advise them that she would be late and then went back to sleep for a while.

[9] C.C. said that, when she woke up for the second time, she left for the bus. Mr. Jadov insisted on walking with her. C.C. said he was very apologetic about what had happened, but she could not recall exactly what he said. C.C. arrived at the shelter at about 2 a.m. and slept until the morning. C.C. did not report the incident because she “was scared” and “still trying to comprehend what had happened.”

[10] Later that morning, C.C. was asked to leave Touchstone because she had an argument with staff. She went to another shelter for a few days. A few days later, C.C. returned to Touchstone to appeal her suspension. It was at around this time that C.C. told someone there that Mr. Jadov had raped her. The next day, C.C. told her mother and “she decided we should tell the police.” Earlier that week, C.C. and Mr. Jadov had been at Touchstone. Despite being kicked out, C.C. was still allowed to use the drop-in facilities. She spoke with Mr. Jadov a couple of times and he was very apologetic about what had happened.

[11] A number of inconsistencies emerged during the cross-examination of C.C.:

• C.C. told the police that they consumed a 40-ounce bottle of vodka instead of a 26-ounce bottle. C.C. admitted that what she told the police sounded “a lot worse”;

• In her examination-in-chief, C.C. said that Mr. Jadov had the marijuana they smoked. In cross-examination, she admitted that she called a friend to buy marijuana and they went to get it. C.C. did not tell the police nor her mother about the marijuana at all; and

• In her testimony, C.C. explained that the first time she passed out. The second time she purposefully lay down, “closed my eyes and tried to rest for a bit.” However, she told the police that she passed out both times.

[12] There are other aspects of C.C.’s cross-examination that are important. C.C. said that, when she woke up, she was able put her underwear and pants on by herself. When Mr. Jadov came back to the room, they climbed out of the window again and smoked on the rooftop. C.C. said that they had to use a chair to get through the window. She did not recall falling as she climbed out of the window. After they came back inside, C.C. called the shelter to advise them she was coming back later on. She recalled saying that she was too intoxicated to return at that point. She failed to mention her call to the shelter when she spoke to the police.

[13] C.C. testified that, after she learned they had sex, she told Mr. Jadov not to tell her boyfriend, Ortiz. She also said that she told a number of people about what happened in the days after the incident, including Ortiz, who blamed her for what had happened.

(b) Utterances of Mr. Jadov

[14] The Crown relied on three utterances or statements made by Mr. Jadov. In each of them, he was sorry for what happened the night he was with C.C. The issue was what he was sorry for.

[15] A few days after the incident, Mr. Jadov delivered a letter to C.C. In dramatic terms, Mr. Jadov expressed regret and apologized for his actions. He did not specify what he was apologizing for. The Crown contends that it was about having sex with C.C. after she had passed out. Mr. Jadov testified the apology was for having sex with C.C. when she had a boyfriend.

[16] On October 22, 2011, police officers went to Mr. Jadov’s room. They asked Mr. Jadov if he knew why they were there. He said words to the effect of: “Because I got drunk and had sex with a girl who didn’t want to?”

[17] Mr. Jadov also provided a videotaped statement. He was asked about the apology letter. Mr. Jadov agreed that he felt bad “about what happened.” But this was not specified further. It was suggested to Mr. Jadov that C.C. had too much to drink and she ended up passing out on his bed. Mr. Jadov said: “Not really, it’s like we both got pretty drunk and like, I don’t know like I remember we kissed” and “I don’t really remember much and I remember we were having sex.” He further explained, “And she wasn’t unconscious, she was moaning and ….But, at the end though I kinda realized she was like way our of it and….” He then said that, afterwards, while she was due back at the shelter, she was “too drunk” and I told her to “pass out for a bit.”

[18] Mr. Jadov said other things of interest during his interview, including following:

• When the two woke up at 2 a.m., “I think…she asked did we have sex and I said ya”;
• “She wasn’t unconscious when we had sex”;
• “She was drunk and so was I”;
• “Uh like, she was, she was conscious when we started having sex and by the end of it, kinda (sic) like she like she didn’t get up afterwards, ya know”; and
• “But I know she was conscious when we started to have sex.”

(c) Mr. Jadov’s Testimony

[19] Mr. Jadov testified that, on the day of the incident, he picked up a 26-ounce bottle of vodka by himself. He returned to Touchstone and met up with C.C. Mr. Jadov asked C.C. where they could get some marijuana. She called someone and they went to that person’s house to get it. They then went to Mr. Jadov’s place, picking up some mix on the way.

[20] Once at Mr. Jadov’s room, they started to drink and went onto the rooftop to smoke marijuana and cigarettes and to drink. Mr. Jadov mixed the drinks. He estimated that there were 2 to 3 ounces of vodka in each. They went onto the rooftop 3-4 times that night. Mr. Jadov said that C.C. had no difficulty going through the window or returning from the rooftop.

[21] Mr. Jadov testified that they were reclined on the bed, with their legs hanging over one of the sides, watching videos on a laptop placed on a chair. They went onto the rooftop again. When the returned, the lay down along the length of the bed. Mr. Jadov kissed C.C. and she kissed him back. They touched each other intimately. Mr. Jadov removed C.C.’s pants with her cooperation. They had intercourse that lasted for about 10 minutes, with Mr. Jadov penetrating her from behind. Mr. Jadov was not wearing a condom and ejaculated inside C.C. He then went to the bathroom to clean himself up and returned to the room minutes later. At this point, C.C. was getting dressed. They went out onto the rooftop and had another cigarette. Mr. Jadov told C.C. he had not worn a condom. She asked Mr. Jadov not to tell her boyfriend, Ortiz.

[22] Because both of them were tired, Mr. Jadov suggested that they both take a nap. C.C. called Touchstone on her cellphone, seeking an extension of her curfew from 10 p.m. until midnight. This call was made at about 9:30 p.m. Mr. Jadov testified that he set his alarm for 11 p.m. However, because the battery in his cellphone died, the alarm did not go off and they slept until 2 a.m. Mr. Jadov woke C.C., who was angry with him for letting her sleep so late.

[23] Mr. Jadov testified that C.C. offered no resistance to his sexual advances, nor did she express any unwillingness to have sex. Moreover, according to Mr. Jadov, C.C. did not pass out; she went to sleep the one time, from 9:30 p.m. until 2 a.m. In terms of consumption, Mr. Jadov said there was vodka left over in the morning. He estimated that it was over half a cup of alcohol and a little bit of mix, maybe six ounces in total. According to Mr. Jadov, C.C. had 2 ½ drinks.

[24] Mr. Jadov acknowledged writing the apology letter. He explained that he was apologizing for ruining C.C.’s relationship with her boyfriend. He said that his words “it happened to me” referenced a time when a former girlfriend cheated on him and that when he said “now I am the cause of it”, he meant that he felt that he was at fault for doing the exact same thing. Essentially, Mr. Jadov said that all of his apologetic words were focused on the fact that C.C. had a partner.

[25] Mr. Jadov was asked about his statement to the police. When he said, “I kinda realized that she was like way out of it”, he meant that she looked tired. Moreover, when he used the expression “passed out” in his statement, he meant falling asleep. Asked about her deportment that night, Mr. Jadov said that C.C. was drunk, but she was not off-balance and she did not faint. As he said, “she wasn’t so drunk that she couldn’t control herself…but I guess she wasn't thinking completely straight in the sense that she had forgot [sic] about her boyfriend.”

[26] In terms of Mr. Jadov’s response to the police to the question “Do you know why we’re here?” – he meant that he had sex with a girl who was now saying she did not want to.

[27] In cross-examination, Mr. Jadov admitted to knowing that C.C. was drunk and she might have been high as well. He disagreed that she was too drunk to have sex, but agreed that she would not have had sex with him if she were not drunk (in terms of having a boyfriend).

[28] In cross-examination, it was suggested to Mr. Jadov that he had no reason to think that C.C. had told her boyfriend about the incident. He testified that, when he was told that he could not come into Touchstone, he believed that someone had reported the incident and that her boyfriend had found out. When he said it “was the biggest mistake of my life” in his apology letter, he was referring to having sex with someone who had a boyfriend.

THE TRIAL JUDGE’S REASONS

[29] After a detailed review of the evidence, the trial judge referred to ss. 273.1(1) and 273.1(2) of the Criminal Code. She evaluated the evidence against the issues of C.C.’s consent and her capacity to consent. After referring to the Supreme Court of Canada’s decision in R. v. J.A. (2011), 2011 SCC 28, 271 C.C.C. (3d) 1 (S.C.C.), the trial judge said:

In other words, consent for sexual assault requires the complainant to provide actual active consent throughout all phases of the sexual activity. An unconscious person cannot satisfy this requirement. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

[30] The trial judge found Mr. Jadov’s evidence (and his written apology) to be “overstated and a bit farfetched.” As she said: “I do not believe Mr. Jadov, nor does his evidence on its own leave me in a state of reasonable doubt.” However, the trial judge identified numerous problems with the complainant’s evidence. She was concerned with the fact that the complainant said she remembered many details both before and after the sexual activity, but not the activity itself. In particular, she noted that, when she woke up, the complainant was able to climb out of the window to smoke on the rooftop and that she recalled calling Touchstone. The trial judge said: “I find it hard to accept that she could do these things and recall these details if she was coming out of an unconscious state.” She also found that many of C.C.’s actions were inconsistent with the fear of Mr. Jadov that she expressed.

[31] The trial judge found that C.C. was intoxicated, but “she appeared to be capable of making decisions for herself.” She was not convinced beyond a reasonable doubt that C.C. was unconscious at any point during the encounter. The trial judge pointed to the evidence of C.C.’s readmission to Touchstone and the disclosure of the sexual assault that day, which she found to be a “possible motivation on the complainant’s part to fabricate.” Moreover, she had a reasonable doubt whether Mr. Jadov’s utterances amounted to a confession.

ANALYSIS

(a) Misapprehension of the Evidence

[32] The Crown points to numerous items of evidence that it contends the trial judge misapprehended. To succeed on this ground, an appellant must overcome a “stringent standard” (see R. v. Loher (2005), 2004 SCC 80, 193 C.C.C. (3d) 1, at p. 25) and identify where a trial judge “is mistaken as to the substance of material parts of the evidence” and establish that those errors played “an essential part in the reasoning process”: see R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 93. See also R. v. Cloutier (2011), 2011 ONCA 484, 272 C.C.C. (3d) 291 (Ont. C.A.), at p. 305.

[33] I am not persuaded that the trial judge erred in this manner. Each piece of evidence that the Crown points to impacted on the complainant’s credibility. The trial judge was entitled to deal with them in the way that she did. In particular, the trial judge was entitled to evaluate C.C.’s claim of unconsciousness against the evidence of her actions immediately before and afterward the incident. The Crown alleges that she was not permitted to do so without expert evidence. However, the Crown carried the burden of proof on the issue of unconsciousness. Given that the Crown elected not to call expert evidence (and it was not required to do so, see R. v. A.A. (2001), 2001 3091 (ON CA), 155 C.C.C. (3d) 279 (Ont. C.A.)), the trial judge was entitled to draw common sense inferences. This does not equate with impermissible speculation.

[34] Similarly, the trial judge did not err in her findings relating to C.C.’s stated fear of Mr. Jadov, nor did she misapprehend the evidence about C.C.’s delayed return to Touchstone. The trial judge was entitled to be concerned about C.C.’s motivation in light of this evidence.

(b) Error Concerning The Law of Consent

[35] The Crown argues that the trial judge erred by failing to “make a positive finding that the complainant consented to the sexual activity.” This submission is peculiar. A trial judge is required to determine whether the Crown has proved lack of consent proved beyond a reasonable doubt, not the other way around: see R. v. Hutchinson (2014), 2014 SCC 19, 308 C.C.C. (3d) 413 (S.C.C.), at pp. 421 and 433, per McLachlin C.J.C. and Cromwell J. The trial judge did just that.

[36] The trial judge was directed to, quoted from and applied ss. 273.1(1) and 273.1(2) of the Criminal Code. As the trial judge said: “[S]he appeared to be capable of making decisions for herself.” In evaluating this passage, and others in the judgment, it is important to note that the case was prosecuted on the basis that C.C. was unconscious and therefore was “incapable of consenting to the activity” (s. 273.1(2)(b)). The trial judge confronted this issue directly. Her reasons as a whole demonstrate a proper appreciation of the evidence relating to whether the Crown had proved lack of consent beyond a reasonable doubt.

(c) Unreasonable Verdict

[37] The Crown also alleges that the verdict is unreasonable and unsupported by the evidence. As the Crown argues in its factum, “in addition to the errors previously argued, it is submitted the trial judge made significant errors in how she dealt with the Respondent’s prior statements and as a result arrived at an unreasonable verdict.” This ground of appeal is without merit.

[38] With respect to appeals in indictable cases (Part XXI of the Criminal Code), the contention that a verdict is unreasonable is a ground of appeal reserved for the defence. Section 675 permits defence appeals based on questions law alone, as well is mixed law and fact. The Court of Appeal is empowered to overturn a conviction when it is “unreasonable and cannot be supported by the evidence”: s. 686(1)(a)(i).

[39] Under Part XXI, the Crown is limited to appeal on questions of law alone: s. 676(1)(a). In terms of the unreasonable verdict ground, there has been some movement in the Supreme Court of Canada about whether this is a question of fact or law. As discussed below, it is now clear that this is a question of law for appellate purposes: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.), at pp. 13-16. However, in the earlier case of R. v. Schuldt (1985), 1985 20 (SCC), 23 C.C.C. (3d) 225 (S.C.C.), the Court addressed the question of whether an assertion that an acquittal is unreasonable was a question of fact or law. In a highly technical judgment that sought to reconcile previous decisions of the Court, Lamer J. (as he then was) said the following at pp. 233 and 238:

…a finding of fact that is made in the absence of any supportive evidence is an error of law. I must say, however, that that will happen as regards an acquittal only if there has been a transfer to the accused by law of the burden of proof of a given fact.

Given the presumption of innocence and the undisplaced burden of proof which rests with the Crown, there is, therefore, some evidence upon which the trial judge could rest his finding and that finding, if in error…would be an error of fact, not law.

[40] The situation is different under Part XXVII – Summary Convictions. Section 813(b)(i) grants the Crown the right to appeal from an acquittal. It does so in language that is unqualified. Consequently, the Crown may appeal on questions of fact, mixed fact and law or law alone: see R. v. Labadie (2010), 2011 ONCA 227, 275 C.C.C. (3d) 75 (Ont. C.A.), at p. 85. In this sense, it does not matter if an unreasonable acquittal is characterized as factual or legal question. Indeed, in an earlier decision, the Court of Appeal held that this broad right of appeal extends to unreasonable acquittals. In R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 1987 171 (ON CA), 32 C.C.C. (3d) 353 (Ont. C.A.) (“Century 21”), leave to appeal to S.C.C. refused, (1987), 38 C.C.C. (3d) vi, the Court considered a number of procedural aspects of summary conviction appeal procedure, including the claim that the Crown’s right to appeal questions of fact infringes ss. 7 and 11(h) of the Charter. This argument was rejected. At p. 384, the Court stated the following:

We take the following propositions to be established by the authorities:

1. The Crown is entitled under s. 755 to appeal on questions of fact: [citations omitted].

2. The summary conviction appeal court is not empowered to retry the case and on review of the record and substitute its findings on credibility for those of the trial judge; the summary conviction appeal court is entitled to set aside an acquittal on questions of fact only where the verdict is unreasonable and cannot be supported by the evidence: [citations omitted].

See also R. v. Kendall (2005), 2005 21349 (ON CA), 198 C.C.C. (3d) 205 (Ont. C.A.), per Cronk J.A., at p. 218.

[41] Returning to appeals under Part XXI, in Biniaris, the Supreme Court confirmed that the question of whether a verdict is unreasonable is question of law. Still, the Court held that the Crown is not entitled to appeal an acquittal on this basis. The Court offered a number of reasons in support of this conclusion, some of them textual in nature, and others more far-reaching. In a passage that transcends the fact/law debate, Arbour J. said the following at pp. 18-19:

There can be no suggestion that the Crown's right of appeal at first instance is being enlarged or expanded to include "unreasonable acquittals" as a result of the determination that the reasonableness of a verdict is a "question of law" as well as a "question of law alone". As before, the Crown is barred from appealing an acquittal on the sole basis that it is unreasonable, without asserting any other error of law leading to it.

There is no anomaly in this result. The powers of the court of appeal in the case of Crown appeals on a question of law are contained in s. 686(4) of the Code. There is no reference in that section to an unreasonable verdict. This is consistent with the limited rights of appeal conferred on the Crown by s. 676(1). The absence of language granting a remedial power corresponding to s. 686(1)(a)(i), suggests that Parliament did not intend "unreasonable acquittals" to be appealable by the Crown at first instance. Further, and more importantly, as a matter of law, the concept of "unreasonable acquittal" is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt…Since different policy considerations apply in providing the Crown with a right of appeal against acquittals, it seems to me that there is no principle of parity of appellate access in the criminal process that must inform our interpretation of this issue. [emphasis added]

[42] The Court has reaffirmed this principle in subsequent cases. In R. v. J.M.H. (2011), 2011 SCC 45, 276 C.C.C. (3d) 197 (S.C.C.) (“J.M.H.”), Cromwell J. wrote the following at pp. 205-206:

It has long been recognized that it is an error of law to make a finding of fact for which there is no supporting evidence: Schuldt v. The Queen… It does not follow from this principle, however, that an acquittal can be set aside on the basis that it is not supported by the evidence. An acquittal (absent some fact or element on which the accused bears the burden of proof) is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met…..

The principle that it is an error of law to make a finding of fact for which there is no supporting evidence does not, in general, apply to a decision to acquit based on a reasonable doubt. As Binnie J. put it in R. v. Walker, 2008 SCC 34, at para. 22:

A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence... . [W]hereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof. [Emphasis deleted by Cromwell J.]

The point was expressed very clearly in R. v. Biniaris…

See also R. v. Barros (2011), 2011 SCC 51, 273 C.C.C. (3d) 129 (S.C.C.), at pp. 157-158.

[43] This issue has yet to be definitively determined under Part XXVII in light of this line of authority. However, in Labadie, supra, at p. 87, after reviewing some of these authorities, Watt J.A. said that “[i]t may be open to doubt… whether an acquittal based on a reasonable doubt can be unreasonable.” See also R. v. David, 2014 ONSC 5049 and R. v. Penavic (2013), 2013 ONSC 3057, 45 M.V.R. (6th) 268 (Ont. Sup. Ct.).

[44] Since Century 21, jurisprudence from the Supreme Court has cast doubt on the Crown’s ability to appeal an acquittal in summary conviction proceedings on the basis that it is unreasonable. At the very least, when an acquittal is based on a “finding” of reasonable doubt (see J.M.H.), the presumption of innocence bars an appeal by the Crown.

[45] The Crown’s unreasonable acquittal attack is focused largely on the trial judge’s treatment of Mr. Jadov’s utterances. The manner in which the trial judge handled these issues does not reflect fact-finding error. She simply entertained a reasonable doubt. Absent other error, it is not a tenable ground of appeal to assert that the trial erred by finding a reasonable doubt. Alternatively, and with respect, the acquittal was not unreasonable.

CONCLUSION

[46] The appeal is dismissed.

Trotter J.

Released: September 21, 2015

COURT FILE NO.: 26/14
DATE : 20150921

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
Appellant

– and –

IOUDJIN JADOV
Respondent

REASONS FOR JUDGMENT

Trotter J.

Released: September 21, 2015