CITATION: R. v. S.D., 2015 ONSC 5959

COURT FILE NO.: CR-14700003700000

DATE: 20150925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.D.

Marco Galluzzo, for the Crown

Perry Schott, for the Defendant

HEARD: June 1 to June 5, and June 11, 2015

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainant or any witness shall not be published in any document, broadcast or transmission.

Allen J.

REASONS FOR DECISION

BACKGROUND

Brief Factual Overview

[1] SD stands accused that on December 16, 2012 he sexually assaulted the complainant, DB, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46.

[2] On the evening of Saturday, December 16, 2012, SD and DB attended a Christmas party at the apartment of mutual friends. SJ and MA, a couple, invited about ten friends to their apartment. Most of the attendees were MA’s male friends; DB was the only woman who attended, other than SJ.

[3] SJ and DB have known each other for many years. Although DB and SJ’s brother have children together, SJ and DB had not been on the closest of terms at the time of the party. DB and SD have known each other since childhood. SD has been friends with DB’s older brother for over 15 years.

[4] DB arrived at the party alone at around 11:30 p.m.; SD entered the party alone between 10:00 p.m. and 10:30 p.m. DB brought a mickey of Smirnoff vodka, while SD brought a half mickey of rum and some marijuana. People brought their own bottles and the hosts provided snacks for guests. The male guests, including SD, played poker at the dining table for much of the night; they drank rum and beer and smoked marijuana. DB and SJ mainly hung out together, drinking vodka and beer and smoking marijuana, and briefly dancing together. SD and DB left the party at around 6:30 a.m. Sunday morning, SD departing first. DB had taken a taxi to the party and intended to take a taxi home; she said that SJ had previously agreed to pay the fare.

[5] It is what happened between DB and SD before they left the party that is in dispute. DB alleges that SD sexually assaulted her by engaging in non-consensual intercourse in the master bedroom at the party. SD denies having intercourse with DB at the party; he says they had consensual intercourse in his van after the party. Importantly, there is no dispute over the forensic evidence that SD’s DNA was found inside DB.

Noncompliance with Section 276 of the Criminal Code

The Section 276 Application

[6] Before the trial started, the defense brought an application under s. 276 of the Criminal Code to admit two incidents of DB’s sexual conduct that allegedly occurred at the party before the incident with which SD stands charged. Section 276(1) provides that sexual conduct of a complainant, other than that which is before the court, is not admissible to support an inference that the complainant is likely to have consented to the sexual activity before the court or is less worthy of belief. This prohibition is referred to as the rule against “the twin myths.” For reasons set out fully in my decision rendered on June 3, 2015, I excluded the evidence.

The Rule in Browne v. Dunn and s. 276

[7] During his examination in-chief at trial, SD made an allegation about consensual sexual activity between himself and DB in his van after the party. This alleged activity was not the subject matter of the defence’s s. 276 application. Neither the Crown nor the court had prior notice of this allegation. Hence this evidence was not adduced in compliance with s. 276.

[8] The problem is that SD answered questions on this allegation before the Crown was attuned to the implications of the evidence. After a short period of questions in-chief, the Crown rose and objected to the line of questioning. He argued that the defence had run afoul of the requirements of s. 276 and the rule in Browne v. Dunn.

[9] Browne v. Dunn stands for the evidentiary proposition that when a party has a witness on the stand during a trial, and that party intends to raise evidence later in the trial that would contradict the witness, the party is required to give the witness notice of the contrary evidence so the witness will have an opportunity to address it: Browne v Dunn, 1893 CanLII 65 (FOREP), 6 R. 67, 1893, (H.L.).

[10] The rule is directed at concerns of fairness: fairness to the witness whose credibility is attacked without a chance to address the contradiction; fairness to the party whose witness is attacked with no notice of the contradictory evidence; and fairness to the trier of fact who would be deprived of information that might show whether the contradictory evidence is accurate, with the impact that would have on the verdict: R. v. Quansah, 2015 ONCA 237 at para. 77. Not every matter on which a party plans to contradict a witness must be put to him or her in advance. As the Ontario Court of Appeal put it:

The rule however is not fixed and trial judges have significant discretion in its application. The rule ‘does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination.

(R. v. Quansah at para. 81)

[11] The court added that the focus should be on matters of substance on which a party wishes to rely to impeach the witness’s credibility. The impugned evidence in the case at hand is clearly not inconsequential. It raises a matter of material substance going to the heart of the issue in dispute.

[12] My first solution to this evidence coming forward on the record without notice was to rule that, as a trier of fact and a judge, I would disabuse myself of that evidence for its breach of s. 276 and not consider it in arriving at a verdict.

[13] In the days after that ruling, the Crown raised interesting legal and procedural issues as well as concerns about prejudice to the Crown and fairness to the defendant and the complainant.

[14] The Crown conceded that there is a proper purpose for the impugned evidence. Of course, a forbidden reason for adducing the evidence on the sexual encounter in the van after the party would be to impeach DB’s credibility on her allegation of sexual assault at the party. As noted earlier, the DNA evidence establishes that sexual contact occurred between SD and DB. The Crown pointed out that the impugned evidence could provide the accused with a viable defence by raising a reasonable doubt as to how SD’s DNA came to be located inside the complainant.

[15] I agree that the use of the impugned evidence for that purpose would not breach the twin myths principle. The problem is that there was no s. 276 determination on admissibility. I will address this problem a little later.

[16] Looking again at Browne v. Dunn, the Ontario Court of Appeal has held the rule is not to be mechanically applied. As Watt J.A. so colourfully stated, it is “not some ossified, inflexible rule of universal and unremitting application that condemns a cross-examiner who defaults to an evidentiary abyss”: R. v. Quansah at para. 89.

[17] The trial judge has some discretion in how to address a breach of the rule. When assessing a witness’s credibility, and deciding the weight to be given to that witness’s evidence, the court can take into account the failure to cross-examine: R. v. Paris, 2000 CanLII 17031 (ON CA), [2000] O.J. No. 4687, at para. 22 (C.A.). Alternatively, the trial judge could permit the counsel whose witness’s evidence was impeached without notice to recall that witness.

[W]here the concern lies in the witness’s inability to present his or her side of the story, if the witness is available and the trial judge is satisfied that the recall is appropriate, the trial judge ought to offer the aggrieved party that opportunity. The mechanics of when and by whom the witness should be called should be left to the discretion of the trial judge. If the aggrieved party who is offered the opportunity declines it, then the trier of fact would simply decide whether to believe all, none or part of the witness’s evidence regardless of whether the evidence was uncontradicted.

R. v. McNeill (2000), O.R. (3d) 212, at paras. 47-49 (C.A.)

[18] In the case at hand, the Crown had already closed its case when the impugned evidence arose. Recalling DB would force the Crown to re-open its case. And in the normal course, the court would have to hold a s. 276 inquiry.

[19] Crown counsel was offered the opportunity to re-open his case and recall DB. As he was entitled to do, the Crown declined. Leaving aside for the moment the s. 276 concern, the Crown’s reluctance to recall DB to the stand and subject her to additional embarrassing and intrusive questioning is understandable. This is a question of fairness to the complainant.

The Crown’s Proposed Solution

[20] The reality is that SD’s evidence about the sexual encounter after the party is part of the record despite my undertaking to disabuse myself of it. Crown counsel voiced concern that the accused’s right to a fair defence would be jeopardized by excluding the evidence. This is a question of fairness to the accused.

[21] The Crown offered another practical solution to the peculiar situation in which the trial finds itself. Subject to the court’s approval, and assuming that, on a s. 276 application, the impugned evidence would ultimately be found admissible as a defence, he recommended that the court bypass the necessity of conducting a formal s. 276 inquiry. Crown counsel acknowledged the prejudice to the Crown caused by the lack of notice of the impugned evidence but conceded that prejudice would be minimized if the evidence was only used for a permissible purpose. He cautioned, however, that the remedy he suggests is not intended to set a precedent.

[22] The defence agreed with the Crown’s proposition and undertook to use the evidence only to formulate a defence.

Court’s Analysis and Conclusion

[23] I gave careful thought to the Crown’s suggestion. The Crown’s proposal addresses questions of prejudice to the Crown and fairness to both the complainant and the accused. Underlying those concerns is a question of how the court should address a violation of a well-established protective statutory scheme. This, I find, raises the further critical matter of the scope of a trial judge’s discretion.

[24] I have already dealt with the trial judge’s discretion to determine how to handle breaches of the rule in Browne v. Dunn.

[25] There is also the broader discretion vested in a judge of the Superior Court. Judges have inherent jurisdiction to control proceedings brought before them. They have the jurisdiction to ensure convenience and fairness in the proceeding, to avoid steps being taken that would make the proceeding inefficient and to prevent abuses of process.

[26] But there are fetters on that discretion. The judge’s inherent jurisdiction cannot be exercised so as to be in conflict with a statute or rule. And because it is an extraordinary power, it should be exercised only sparingly and in clear cases: Baxter Student Housing Ltd. et al. v. College Housing Co-operative Ltd. et al., 1975 CanLII 164 (SCC), [1976] 2 SCR 475, at p. 480; Montreal Trust Company et al. v. Churchill Forest Industries (Manitoba) Limited, 1971 CanLII 960 (MB CA), [1971] 4 W.W.R. 542, at p. 547 (Man. C.A.). The scope of inherent jurisdiction is not so broad as to allow the court, in the normal course, to override legislation – in this case, s. 276 of the Criminal Code.

[27] Section 276 provides little flexibility. The only exception to the formal procedure is that the application judge, in the interest of justice, may shorten the notice period in s. 276.1(4)(b). This gives me the discretion to relieve the defence of having to advise the court and Crown seven days in advance of the evidence on which it seeks to cross-examine the complainant.

[28] Reflecting on the Crown’s proposal, I considered the founding purpose of s. 276. The s. 276 scheme was intended to protect a complainant in a sexual assault case from unwarranted questioning about his or her sexual conduct. To this end, Parliament developed guidelines to govern the admissibility and relevance of evidence of a complainant’s sexual behaviour. It did so to prevent the defence from introducing evidence or cross-examining a complainant to elicit impermissible adverse inferences about his or her character or conduct.

[29] This court is faced with a circumstance where defence neglect in regard to s. 276, coupled with a brief inadvertence at trial by Crown counsel during SD’s testimony, resulted in evidence of DB’s alleged sexual conduct in the van becoming part of the record. In terms of s. 276 requirements, the defence did not provide notice. Technically, I have the discretion to excuse that lapse in the interest of fairness.

[30] But a more substantial concern arises from the failure to satisfy other aspects of s. 276. The evidence did not come by way of the required written application, containing detailed particulars and a statement of the relevance of the evidence sought to be adduced to an issue at trial. As recognized earlier, lack of notice raises questions of a prejudice to the Crown and unfairness to the complainant.

[31] Balanced against prejudice and fairness on the prosecution’s side is a critical issue of fairness to the accused. I refer here to the reality pointed out by the Crown: the impugned evidence, already part of the record, provides a defence – perhaps the best defence – by which the accused might raise a reasonable doubt as to his guilt. Exclusion would create a void in the evidence where a potential defence might lie.

[32] This brings up a principled basis on which the impugned evidence ought not to be excluded, the “air of reality” test, which defines the obligation of a trial judge when faced with possible defences arising on the evidentiary record.

[33] The “air of reality test” was developed in the context of a jury trial. It is intended to guide the inquiry as to whether an evidentiary foundation exists for a defence and to assist the judge in deciding which defences to keep from the jury. The Supreme Court has said that, “A trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury.” Further, “The question to be asked by the trial judge in applying the air of reality test is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted the evidence as true.”: R v Cinous, 2002 SCC 29 at paras. 51, 53 and 81.

[34] The air of reality test is equally applicable to a judge-alone trial. The law places on a judge sitting alone an obligation to consider any evidence that might provide a defence for the accused, meaning that the judge could acquit the accused if he or she accepts the evidence as true.

[35] In considering how to handle the impugned evidence and the violation of s. 276, I must balance the interests of the Crown, the accused and the complainant. As noted earlier, the prejudice to the Crown is reduced if the impugned evidence is used to found a defence and not for an impermissible reason. I find that the Crown’s decision not to recall the complainant for further invasive questioning, and the assurance that the evidence would not be improperly used, reduce the unfairness to the complainant.

[36] I find that in the circumstances the greatest unfairness would be done to the accused if he were deprived of the defence. For that reason, and in view of my positive obligation to afford the accused any reasonable opportunity to raise a defence, I conclude that SD’s entitlement to the defence must take precedence over other interests.

[37] My decision on this matter was made easier by the parties agreeing on the proper use of the evidence. I am also comforted in my decision by the fact that, were I to have heard the s. 276 application, I would have admitted the evidence for use as a defence.

[38] I do not lightly make the decision to obviate the requirements of a statutory scheme. I caution that this decision applies solely to the peculiar and unexpected situation that developed before this court during this trial. It should not be taken as precedential support for abandoning the requirements of s. 276.

[39] The struggle for a fair process that protects victims of sexual assault from unwarranted invasions on their privacy, while respecting the accused’s right to a full and fair defence, was hard-won and should not be treated frivolously. Given those objectives, I also take comfort in the belief that the drafters of s. 276 could not have intended to deprive an accused − faced with the unusual circumstances of this case − of an available defence.

[40] I will therefore consider, in the context of all the evidence, SD’s evidence that there was an episode of sexual intercourse between himself and DB in the van after the party and decide whether I believe all, some, or none of that evidence.

TRIAL EVIDENCE

DB’s and SJ’s Evidence

DB’s Evidence on Drinking before the Party

[41] DB admitted to having a drinking problem for the past five years since the break-up of her relationship with her children’s father. She has not addressed this problem through substance abuse treatment. DB testified that on the night of December 14, the night before the party, she had drunk heavily and was badly hung over the next day. She did not drink during the day on December 15 but began to drink at 10:30 p.m. before arriving at the party. She opened a mickey of vodka that she had purchased to take to the party. She estimated that she drank about two shots’ worth of vodka from the bottle while getting dressed for the party. She then purchased a Red Bull at a gas station. She went to the washroom at the gas station and filled half the 250 ml can of Red Bull with vodka. The other half contained Red Bull. She called a taxi from the gas station and began drinking the mixed drink en route to the party. She finished the mixed drink at the party.

SB’s and SJ’s Activities at the Party

[42] SJ testified for the Crown. As noted earlier, SJ and DB had once been close friends but had grown apart in the last few years before the party. They saw each other at the party for the first time in a long time. Since the party they have had no contact.

[43] At about 11:30 p.m., SJ met DB at the entrance to the apartment building. Both SJ and DB gave evidence that DB was in very good spirits. SJ remarked that DB was overly excited about being at the party. SJ saw DB arrive with an open mickey. SJ said she could tell that DB had been drinking before she got there because she seemed a bit intoxicated.

[44] DB and SJ went upstairs together. Within 15 minutes of arriving at the party DB and SJ had two shots each from a shot glass of the house vodka. At around midnight, DB and SJ had a shot each of DB’s vodka. DB then put her mickey in the freezer. There is no evidence that anyone else at the party drank from DB’s vodka. At that time, SJ and DB started sipping beer. SJ said she believed that DB drank a couple of beers that night in addition to shots of her own vodka and the house vodka.

[45] Because SJ and DB had not seen each other for some time, they went to SJ’s bedroom to catch up. After about ten minutes they decided to smoke some marijuana in the bedroom. As the marijuana was being prepared, SD entered with a blunt – a cigar containing a mixture of tobacco and marijuana – and a mickey of rum. So the marijuana the women were going to smoke was combined with SD’s and he rolled it in his blunt. The three of them smoked the marijuana. DB testified that she was not much of a marijuana smoker but she had as much as six to ten puffs.

[46] DB testified she began to feel the effects of the alcohol while she was in the bedroom before she had the puffs of the marijuana. She then took a shot of SD’s rum from a shot glass. DB testified she was still drinking beer. After the marijuana and rum she was feeling very intoxicated because she was consuming the drinks very quickly. SD brought his music into the bedroom; they were rapping and singing along and laughing a lot.

[47] After smoking the marijuana in the bedroom for about 15 minutes, DB and SJ went to the kitchen and had another shot each of the house vodka. Then they played music and started dancing together in the living room for about 15 minutes. DB testified her head was spinning as they danced. She and SJ fell to the floor and both of them had difficulty getting back up. SJ confirmed that DB was quite intoxicated when she was dancing and fell to the floor. SJ testified that she did not recall everything about the evening because she was as intoxicated as DB.

[48] DB said because she had not seen SJ for a long time, they just kept talking and drinking as if they were in a competition. She testified she is not sure how much more vodka she drank after she left the bedroom but she knew her intoxication level was rising. She believes she continued to take shots of vodka from both her mickey and the house vodka.

[49] Both DB and SJ said they remained together the whole evening. Then DB went to the washroom and SJ went to bed in the master bedroom. DB testified she felt very sick like she was going to vomit. She went to the washroom and bent down and hugged the toilet. She started to fall asleep.

[50] Neither DB nor SJ could estimate how much they drank. But their evidence is in accord that they were both very intoxicated by the time they returned to the bedroom and lay down.

DB’s and SJ’s Evidence on the Incident in the Bedroom

[51] DB testified that she believed MA had entered the washroom, saw her and told her she should lie down. But she did not see his face or recall getting to the bedroom. MA denied seeing DB in the washroom or helping her to the bedroom. Although DB did not see SJ go to the bedroom, when she arrived there SJ was lying on the left side of the bed. SJ testified that she felt quite sick because she drank too much. She went to bed about 3:30 a.m. The party was not over by then. DB and SD and others were still there.

[52] DB testified that she laid down fully clothed on the bed beside SJ. DB had no idea what time it was. She was lying on her left side with her face toward SJ’s back. She fell asleep quickly. No one else was in the bedroom with them at the time.

[53] DB testified that what she next experienced is not entirely clear to her. The first thing she remembered was being slapped on her buttocks. The slap was hard and it hurt. It caused her to open her eyes. Because of her drunken state she went right back to sleep, drifting in and out of consciousness. DB said then she remembered being pushed and pulled and she felt a bouncing feeling. She said she could not see who did this because she could not stay awake and her back was towards the person. She felt it was the bed spinning. DB testified that she got slapped more than once, but the first slap startled her.

[54] SJ said that after she fell asleep, the first thing she recalled was the bed moving and hearing “sex noises”. She heard moaning from DB who was lying beside her. She knew it was DB because she was the only other female at the party. SJ testified the lights were off in the bedroom; she could hear noises, but could not see faces or facial expressions. But when she opened her eyes and turned on the light she saw DB lying on her back, beside her, wearing only her shirt and no pants or panties. SD was also in the bedroom and, according to SJ, his pants were pulled down. SJ testified that this occurred between 5:30 a.m. and 6:30 a.m.

[55] SJ was very angry about what was taking place in the bed beside her. She yelled and swore and ordered everyone to leave the apartment. SJ went into the living room to get her boyfriend MA. SJ testified that when DB and SD got up from the bed, DB had her underwear in her hand. MA threw DB’s clothes at her. DB said when this happened she felt like she was in a dream-like state and she recalls giggling.

[56] DB testified that she tried to balance herself to put her clothes on in the bedroom in front of SJ and MA, but she felt weak and disoriented and stumbled toward the door. SJ testified that first SD, then DB, left the master bedroom and went into the main washroom. SJ testified that after SD came out of the washroom he apologized to MA. DB said she had no memory of going into the washroom.

[57] SJ confirmed DB’s evidence that, when she and MA were yelling, DB was confused as to why they were yelling at her. She had difficulty focussing. She said DB giggled. This contradicts SJ’s testimony from the preliminary inquiry, which she confirmed at trial, that DB was fine walking on her own. Then MA got DB’s mickey from the freezer. The amount of vodka left in the bottle is not clear; various witnesses said it was empty, one-quarter full, or one-half full.

[58] SD left the apartment about five minutes before DB. DB had no taxi fare to get home. SJ and MA confirmed DB’s evidence that she asked them for taxi fare to get home. MA offered her $5.00, not enough for a taxi, and DB threw it back at him. According to DB, MA told her to get out and slammed the door in her face. DB testified she fell to the floor outside the door. She said she left the apartment about five minutes after she got up from the bed.

[59] DB said she saw SD approach her in the hallway when she was on the floor. She believes SD helped her up and offered her a ride. They both lived in Scarborough. DB said she suffered a memory gap between the time she was on the floor and when she ended up in the front passenger’s seat of SD’s van. She testified she only recalls one thing while she was in his van: opening her eyes and seeing SD masturbating beside her. She then went back to sleep and the rest of the morning until she woke the next afternoon at about 6:30 p.m. in her apartment is a complete blank.

[60] DB insisted that she did not recall having sex with SD and that she could not have consented because she was asleep. She testified that she never flirted with SD or danced with him at the party; she only danced with SJ.

SD’s and MA’s Evidence on Activities at the Party

[61] SD and MA were close friends for years before the party. Their evidence differs as to their relationship since the party. I will address the inconsistencies later.

[62] I found discrepancies between SD’s and MA’s evidence about the consumption of drugs and alcohol at the party. Their evidence differs from DB’s and SJ’s evidence, as does the men’s testimony about DB’s demeanour at the party.

[63] I found that the tenor of MA’s evidence about DB lacked objectivity. This was evident from the start of his testimony. On examination in-chief, in answer to initial questions about DB, he immediately launched into comments directed to attacking her reputation. He had to be cautioned on occasions to answer the questions asked and avoid personal remarks about DB’s sexual reputation and character.

[64] SD and MA spent most of the evening playing poker at the dining table, drinking alcohol and smoking marijuana. SD said he brought a half mickey of rum and some marijuana to the party. SD also brought his music to the party and acted as the house DJ. SD testified he drank a few beers and split his rum with others. The bottle was empty at the end of the evening.

[65] SD said he did several rounds of marijuana at the table and in the living room. He confirmed DB’s and SJ’s evidence that he also went into the master bedroom and smoked marijuana with the women and engaged in singing and rap. SD mentioned a second time in the bedroom smoking marijuana with DB and SJ which they never mentioned. SD said he went back to play poker and finished playing poker around 12:30 a.m. He said he then began to walk around and socialize. SD estimated that from 10:30 p.m. when he arrived to 12:30 a.m., he took in total about 32 puffs of marijuana in addition to the shots of rum and the beer.

[66] SD was questioned about his observations of DB’s consumption of alcohol.

[67] SD testified that he thought DB was drinking before she arrived because her vodka bottle was open. He testified that, depending on where he was situated, he could not always see DB getting drinks in the kitchen; but he saw her getting drinks on about two occasions. He also saw DB at different times with her vodka bottle, a beer and a red cup in her hand. He testified that throughout the night she had a beer in her hand but he could not say how many beers she had consumed. He also saw her with a drink in the master bedroom and was aware that at the end of the evening she had less vodka in her bottle than she arrived with.

[68] In contrast to DB’s and SJ’s own evidence about the incident when they fell to the floor while dancing, saying that they went down and had difficulty getting up, SD testified that there was no sign DB was drunk. He said DB got right back up and the two women had “girls’ celebrity shots” after that.

[69] Also contrary to DB’s and SJ’s evidence, SD testified that after the music session in the master bedroom and after smoking marijuana DB’s demeanour was like she was just having fun. He saw no effect on DB of the alcohol and marijuana she consumed. He had the same observation of SJ. He did not observe either of them appearing intoxicated that evening. According to him, DB was walking and talking normally. MA made the same observation about DB. He testified that she did not seem intoxicated during the party.

[70] Also, in contrast to MA’s observation of SD’s sobriety, SD said he was not feeling intoxicated by the rum, beer and marijuana he consumed. He testified he was “very sober” when he left the party. MA said SD, like himself and everyone else at the party, was noticeably drunk. He testified that SD’s speech was somewhat slurred. MA’s assertion that everyone was intoxicated is at odds with his earlier testimony that DB did not seem intoxicated.

SD’s Evidence Related to the Incident in the Bedroom

[71] SD’s testimony about events leading up to, during, and after the sexual episode with DB in the master bedroom diverges substantially from DB’s and SJ’s.

[72] SD testified the party was dying down around 3:30 a.m. just after SJ went to bed. He testified he rolled a joint at this time and while he was doing so, he said he saw DB standing between the master bedroom and the washroom. He testified, she gestured to him and took his hand and led him to the master bedroom.

[73] SD gave the following evidence about the sexual episode.

[74] SD contends there was no sexual intercourse. He testified that when he and DB got to the master bedroom, he turned the bedroom light on. In the instant before DB turned the light off, SD saw SJ on the bed. DB put her fingers to her lips signalling SD to be quiet. He saw DB bend down and take off her pants. SD had to veer to the right to get to the right side of the bed. SJ was on the left side toward the washroom. DB lay on top of him making out with him. He said he and DB were at the end of the bed. He had his clothes on. DB’s feet were on the ground. SD was stimulating her. SJ’s back was toward DB. SD reached down with his hand and stimulated DB’s genitalia. He heard noises of enjoyment. From the time they entered the bedroom and SD was on top of her, less than one minute passed. SD and DB talked back and forth quickly. That disturbed SJ and she woke up. SJ was angry and said, “Are you guys serious, in my bed?”

[75] SD testified he was not aware DB was menstruating at the time. SD testified he did not see a tampon. As I will discuss later, when cleaning the bedroom later that day, SJ found a bloody tampon under the bed. SD said when he went into the washroom to clean up he saw pink in the sink when he washed his hands. He said he did not know what the pink stuff was. He thought it might be the pink colouring from the playing cards. He testified he would not have sex with a woman on her period. He said he found out from her in the van she was on her period. But he thought her period was almost over, so he had intercourse with her in the van anyway.

[76] SD confirmed the evidence that SJ got out of the bed and went to get MA. SD also testified that SJ and MA swore and yelled about DB’s and SD’s sexual encounter in their bed. SD testified that DB was looking for her clothes. He indicated he went to the washroom to clean up and she followed him there with her top on and no pants.

[77] SD testified that DB said she did not know what to do because she was being kicked out. He testified that he offered her a ride home. He left the washroom and went outside the apartment unit to wait for her; while he was waiting he could hear three voices yelling inside.

[78] Contrary to SD’s evidence that she fell on the floor in the hallway, SD testified that she walked normally out of the apartment about five minutes after him. SD said DB came out of the apartment with her vodka bottle in her hand. He said she was fine except she was distraught and emotional at being kicked out of the apartment. SD testified it was about 6:30 a.m. to 7 a.m. when they left the party.

[79] Crown counsel challenged SD on his evidence that DB was sober when they went into the bedroom. He suggested to SD that he knew DB was going in and out of consciousness. Counsel asked him, given the amounts he saw DB drink, whether he thought it would have been wise to check her sobriety. SD denied that she was drunk; he said that from knowing DB, the amount she drank was below the level of alcohol that she could handle.

Developments after the Party

The Sexual Encounter in SD’s Van

[80] As noted earlier, the agreed statement of facts contains a concession that SD’s DNA was found in DB. SD contends he did not engage in sexual intercourse with DB in the bedroom at the party. He does however say that he had consensual intercourse with her in the van after they left the party. The following is his account of that incident.

[81] As noted earlier, DB testified that she was very intoxicated when she entered the van. All she said she remembered after she found herself in the front passenger seat is seeing SD masturbating. The rest of the time is a blank until she woke up in her apartment many hours later.

[82] According to SD, DB was able to walk a couple of flights of stairs to the garage and out to his vehicle parked in the above-ground parking lot outside the apartment building. SD said that she was very upset about being kicked out of the apartment. He said that DB was ranting and he was trying to calm her down. SD said she asked for some weed and when he told her it was finished she turned to her vodka bottle. She had three swigs directly from the bottle according to SD and another swig later.

[83] SD’s evidence is that he was trying to console her by hugging her and she hugged him. He said she started squeezing him and rubbing his back. They started to make out, putting their hands all over each other. SD testified that he told her “let’s finish what we started earlier”. According to SD, DB and he then moved to the back seat and she took her pants off. He was sitting on a back seat and pulled his pants down to his knees and they began having intercourse. SD testified she first straddled him facing him and then straddled him not facing him. SD testified they had sex for about 40 − 50 minutes. SD testified that DB was fully participating in sexual intercourse.

[84] In-chief, in answer to the question as to how he confirmed DB’s consent, SD said the following.

[85] When he was embracing and consoling her and tried to ease back, she kept holding him. He thought she wanted more consoling so he stroked her back and she stroked his. They began squeezing each other’s genitalia with their hands under each other’s clothing. DB then took off her pants. He did not have a condom with him. He said she told him she was taking the pill. He said he ejaculated inside her.

[86] SD said they got dressed. He testified that DB drank the rest of the vodka from her bottle which SD estimated was half-full at the time. It took 25 minutes to get to her apartment. SD testified they had a cigarette together in the van and talked before she went to her apartment. He testified that DB said she did not want him to go but he said he had to get home. SD said he left her at her apartment at about 8:15 a.m.

DB’s and SJ’s Evidence on their Activities after the Party

DB Wakes up in her Apartment

[87] DB testified she did not remember the ride home or entering her apartment. She stated she woke up at about 6:30 p.m. on December 16 on the floor between the living room and dining room. According to DB’s mother, DB had fallen asleep on the couch and ended up on the floor. She has no recollection of speaking to her mother when she arrived home. DB said she was hung over, confused, disoriented and very tired and sluggish. She testified she was sore all over like she had been hit by a truck. This feeling, she said, is not common to a hangover.

[88] DB testified she got up and went to the washroom. She freaked out. There were bruises on her legs. She had on her top wear and pants but did not have on any underwear. She was on her period and her tampon was missing. She said she was worried because she recalled putting on her underwear at the party and she had not removed her tampon.

SJ Cleaning the Apartment

[89] SJ testified she cleaned the apartment later that morning. She took the sheets off the bed and washed them. When she was later cleaning under the bed she found a tampon covered with blood. She said it had to be from DB because it was not hers. She threw it in the garbage. She did not call the police.

The Phone Calls Later that Day

[90] SJ testified DB called her around 12:30 p.m. on December 16, the day after the party. SJ said DB was confused and “out of it” and did not know what had happened. At the time, DB was not crying. SJ learned DB had just woken up. SJ told DB that she kicked her and SD out of the apartment because they had disrespected her. When it appeared DB did not know what she meant by that, SJ told DB she was angry because SD and DB had sex in her bed. SJ said DB seemed dumbfounded. SJ testified she found it weird that DB did not know who she had been intimate with.

[91] SJ testified DB called her again around 8:00 p.m. and that DB was more alert. There is an issue about the 12:30 p.m. call by DB. DB testified the first call she made to SJ on the day after the party was around 7:00 p.m., or thereafter. She denied making a call at 12:30 p.m. This seems to accord with the fact that SJ did not mention two calls from DB either in her police interview on the evening after the party or at the preliminary inquiry. She only mentioned the 8:00 p.m. call. In the end, however, it is not clear whether there were two calls.

[92] DB confirmed that SJ had communicated to her the comments SJ said she had made to DB in the 12:30 p.m. call. In the 8:00 p.m. call, DB told SJ she felt like she had been raped. This is a prior consistent statement which will not be used for its truth but only as part of the narrative and to show DB’s state of mind. DB also confirmed that SJ told her she and SD had disrespected her and they could no longer be friends. In response to further comments by SJ in the 8:00 p.m. call, DB testified that she did not recall moaning or that the moaning had awakened SJ. DB testified she started crying on the phone. She testified she was horrified and disgusted and told SJ she was going to the hospital and police because she had been taken advantage of.

The Hospital

[93] DB testified that after the call to SJ she threw herself on the floor and started crying. DB said then she started trying to piece things together. She spoke to her mother, brother and the father of her children. DB testified she also called MA to ask what had happened to her and to tell him she was angry he threw her out of the party in such a bad state. MA did not mention this call in his evidence.

[94] DB testified she thought a tampon was still inside her so she had to get to the hospital to have it removed. She decided she also needed to get a rape kit done. She left for the hospital with her brother at around 10:30 p.m. She stated she told the triage nurse that she got drunk at a party and someone had sex with her and there was a tampon inside her. This too is a prior consistent statement to be used for narrative and state of mind purposes. DB learned that the hospital did not do rape kits and she was directed to another hospital that could accommodate her.

[95] DB’s brother saw two uniformed police officers at the hospital, one a female, and brought them over to see DB. The female officer asked if she was all right and asked DB if she wanted to go outside to talk. The officer offered to drive her to the other hospital. DB testified she was very upset and after 10 – 15 minutes the officer calmed her down and DB agreed to go with her to the other hospital.

[96] P.C. Hasiuk testified that DB was on the verge of hysteria when she was talking to her. According to the officer, DB held onto her arm and cried uncontrollably the entire time they were talking. The officer observed DB’s face was red and swollen. She left with DB for the other hospital at 10:47 p.m. and stayed with DB at the other hospital until midnight.

[97] DB admitted to having a drinking problem for a few years due to stressors in her life but did not consider herself to be an alcoholic.

[98] The Crown filed a toxicology report. The toxicology evidence of Jean-Paul Palmentier is not in dispute. His report reveals that DB’s blood alcohol level at the time of the offence would have been substantially above the legal limit for driving, at a level between a minimum of 177 mg/100 ml and a maximum of 512 mg/100 ml of her blood. The toxicology opinion is that even at the minimum level, a person with light to moderate drinking habits, would experience signs of intoxication. This would have to be adjusted for a person like DB who was a heavier drinker. These signs would include slurred speech, lack of co-ordination and possibly impaired consciousness, ranging from drowsiness to unconsciousness or passing out. The person could experience a level of sedation potentially affecting her ability to recall events.

[99] The sexual assault kit evidence is not in dispute. It reveals that DB had a bruise on her left buttock; that she was experiencing pain along her lower back leading to her upper buttocks; that she had bruises on her upper right leg, inner left thigh, and the back of her upper left leg; and she was menstruating

The Police Call and Visit with SJ

[100] The police called SJ from the hospital at around 10:00 p.m. while they were still at the hospital. They said they were coming to search her apartment. SJ testified that she told the police she washed the sheets and discarded the tampon. She told the police she did not know that a crime had taken place. It appears at this point that SJ did not acknowledge DB’s claim that she felt like she had been raped. The police did not arrive at her apartment until about 2:00 a.m.

Credibility

DB’s and SJ’s Credibility

[101] DB’s evidence was substantially consistent with SJ’s evidence on the critical points. Although SJ appeared at times to be trying not to side with either party, I got the overall impression that she was trying to tell the truth as she recalled it. She admitted that she and DB had not been close for a number of years and had had a particularly distant relationship since the party. In spite of this, I did not find SJ let this colour her testimony in any substantial way.

[102] I found DB a credible witness who struggled to tell an embarrassing and humiliating account of what happened to her at a party on December 15, 2012. She underwent vigorous cross-examination and maintained under intense pressure that she had been sexually assaulted by someone she knew from childhood, her big brother’s friend. She did not set out to glorify herself. She admitted to having alcohol problems. She admitted she was going to SJ’s party after waking with a hangover from a party the night before. This did not place her in the most virtuous light.

[103] DB had the opportunity to embellish the amount she drank and smoked at the party. What I saw instead was a person genuinely endeavouring to estimate her alcohol and marijuana consumption despite being daunted by humiliation, the passage of time and an evening that gradually faded into oblivion. She did not try to fill in the gaps with exaggerated claims as to what she remembered. I found that the defence did not make any meaningful inroads into her credibility.

[104] On the important matter of how much alcohol DB drank and what state she was in at the party, DB and SJ’s evidence is basically consistent. I accept SJ’s evidence in this area because SJ and DB remained close together throughout the party from about 11:00 p.m. until SJ went to bed at around 3:30 a.m. SJ was in a better position than anyone to observe DB.

[105] DB and SJ drank from the house vodka and from DB’s mickey and had some beers, although it appears DB drank the majority of her mickey. It appears that they drank in tandem. Their evidence is in accord that when one of them had a drink or smoked marijuana, the other did the same. DB described their drinking as being like a contest. They both testified that they consumed their drinks too quickly.

[106] DB and SJ drank multiple shots of vodka, a shot of rum and some beers over a period of some four hours. In addition they smoked several rounds of marijuana taking multiple puffs. They testified after they had many drinks and smoked some marijuana, they went to dance and play their music in the living room. They both fell to the floor laughing and had some difficulty getting up. This supports DB’s evidence that she was having problems with balance. When she and SJ got up from the floor, they toasted each other with “girl’s celebrity shots”. SJ described herself as very intoxicated before she went to bed and said that DB was just as intoxicated as she was.

[107] DB had awakened hung over from a party the night before. Early on, on the night of the party, DB started drinking at about 10:30 p.m. She had purchased the mickey and drank some swigs directly from the bottle and then mixed one-half a can of Red Bull with one-half vodka in the can and drank that before she arrived. SJ and others confirmed DB’s evidence that she was feeling some intoxication when she arrived. She was described by others, including MA, as seeming overly excited and in high spirits about being at the party.

[108] SJ’s evidence about DB’s state after SJ was awakened is consistent with her (SJ’s) evidence about DB’s state of intoxication before she (SJ) went to bed. SJ said when she was yelling at DB, DB seemed confused, unable to focus. This is consistent with how DB described her own state at the time. However, SJ did testify that DB was walking fine. This seems inconsistent with DB’s evidence that she was stumbling, dizzy and having difficulty with balance. It is also inconsistent with SJ’s own evidence of how intoxicated DB was. Both MA and SD testified that DB was not having problems walking and talking. Unlike SJ, they generally downplayed any suggestion that DB was intoxicated. I believe, based on DB’s substance consumption, that it is more than feasible that she was staggering and unsteady on her feet.

[109] DB had consumed a great deal of alcohol and some marijuana. I accept her evidence that she felt very sleepy after being hung over from the night before, drinking before she got to the party and drinking and smoking marijuana for over four hours at the party. It is believable that she fell deeply asleep and in and out of consciousness. SJ, who drank a similar amount, said she fell deeply asleep immediately when she lay down on the bed. I found DB’s evidence about being very dizzy, as if in a dream-like state when she woke up in the bedroom, credible. This is consistent with the expert toxicology evidence on the state of persons with DB’s estimated blood alcohol levels.

[110] There is inconsistency between SJ’s and DB’s evidence in a certain area.

[111] I am referring to the phone call(s) DB made to SJ later in the day after the party. SJ was adamant DB called at 12:30 p.m. and 8:00 p.m. But DB said she did not make the earlier call. I do not find this to be a problematic inconsistency. Both SJ and DB spoke of how groggy and “out of it” DB was when she first spoke to SJ that afternoon. It is entirely possible that DB was in no shape to remember the 12:30 p.m. call. SJ testified DB was much clearer when she spoke to her later that evening during the second call. It is just not clear why SJ did not mention the two calls to the police during her the preliminary inquiry or at trial. Whatever the reason for the inconsistency, I find that it does not undermine the overwhelming consistency in the more important areas of their evidence.

[112] There is, however, a seeming inconsistency within SJ’s evidence itself.

[113] This is in terms of what SJ had heard from DB on the phone and what she told the police. She told the police she did not know a crime had been committed to explain why she did not preserve the bedding and tampon. However, a few hours before SJ spoke to the police, DB had told her she thought she had been raped and was going to the hospital and police. This was not explored in any depth with SJ. As I mentioned earlier, the answer may be that SJ genuinely did not believe that the sexual encounter was non-consensual. She said she thought it was weird that DB did not know who she was intimate with.

SD’s and MA’s Credibility

[114] As noted earlier there are inconsistencies in SD’s and MA’s accounts of their relationship since the party. Crown counsel cross-examined SD about this.

[115] According to MA, they continued to hang around together after the party until the present. MA testified that, in fact, he spoke to SD the weekend before the start of the trial. MA testified that at that time he asked SD whether he needed him as a witness for the trial and SD stated he was unsure. SJ also testified that SD’s and MA’s relationship was not disrupted after the party. SD, on the other hand, testified that since the party he and MA do not talk regularly. According to SD, they speak once every three months. When asked whether he ever discussed this case with MA, SD said he did not. When questioned about this, SD said he only spoke about the trial with MA in the early days, not recently.

[116] I find it more likely SD had been keeping in touch with MA and that he spoke to MA close to the trial date. I cannot see what MA would have to gain by giving false evidence about that.

[117] On the evidence related to DB, I find that both SD and MA downplayed DB’s level of intoxication.

[118] SD was confronted on cross-examination with his observations of how much DB was drinking and smoking. It was clear that SD saw her consistently drinking and was with her when she smoked marijuana. He tried to explain his statement that she did not seem intoxicated by saying that she can hold her drinks. As I noted, MA also minimized DB’s level of intoxication despite his general comment that everyone at the party was intoxicated. I find that the Crown’s evidence satisfies me beyond a reasonable doubt that DB was very intoxicated. SD’s and MA’s evidence, which stands out as notably inconsistent with the Crown’s, does not raise a reasonable doubt in my mind as to DB’s advanced level of intoxication.

[119] I spoke earlier of MA’s disposition to attack DB’s character as if he came to court for that purpose. This lack of objectivity also casts doubt on MA’s credibility.

[120] There was also a substantial discrepancy within SD’s evidence about the timing of the bedroom encounter. Crown counsel cross-examined him on this.

[121] Crown counsel pointed out that, according to SD’s evidence in-chief, DB beckoned to him to come to the master bedroom sometime just after 3:30 a.m. and they went into the bedroom after a very brief exchange. Also by his evidence in-chief, the sexual encounter lasted less than one minute because SJ woke up and interrupted them. Then also on SD’s evidence, DB and SD had departed the apartment some five to 15 minutes after they were confronted by SJ and MA. Defence counsel put to SD that the time line from 3:30 a.m. until they left the apartment contradicts his previous evidence that he and DB left the apartment roughly three hours later, at around 6:30 a.m.

[122] SD agreed that the contradiction in times meant that his story was not feasible. But SD did not explain this discrepancy. I find this an outstanding credibility problem in view of the level of precise detail SD offered in other areas of his evidence.

[123] There are also SD’s answers to questions by the Crown about how he could have had sex with someone in his friend’s bed while she was sleeping there.

[124] SD first testified he understood why SJ and MA were angry. He gave evidence in-chief that SJ was upset because they had sex in her bed while she was sleeping and that MA had told SD he was angry because SD had disrespected his girlfriend. This, the Crown pointed out, is inconsistent with his testimony on cross-examination that this was not an uncommon occurrence at SJ’s and MA’s apartment. SD testified on cross-examination that he knew it happened at other parties because he had heard stories about other people having sex in SJ’s and MA’s bed when they were sleeping there.

[125] The Crown questioned how SD could say that he understood why they were upset if he and DB were not doing anything out of the ordinary for SJ and MA. In response, SD attempted to change his story. Now he said that he thought SJ and MA were upset because SD and DB had awoken SJ. I find that this second version does not make sense, given SD’s explicit evidence that SD and MA told him on the spot why they were angry. As well, SJ and MA both attested that the reason for their anger was that SD and DB had had sex in their bedroom while SJ was sleeping.

[126] SD’s criminal record was before the court. SD’s evidence about his character and conduct is at odds with his criminal record. He testified that he is not a violent person. Crown counsel challenged him on that testimony. He pointed to SD’s several convictions, mostly for robbery and theft convictions, plus an assault with a weapon and two other weapons convictions.

[127] On the assault conviction, SD testified he was convicted but denied that he did it. SD would not accept that his criminal record indicates a history of violent conduct. SD asserted, “I don’t consider myself violent just because I did violent things.”

PARTIES’ ARGUMENTS AND THE COURT’S ANALYSIS

The Parties Theories of the Case

[128] The Crown’s position is that it has proven beyond a reasonable doubt that SD sexually assaulted DB in SJ and MA’s bed in the master bedroom at the party. The Crown’s theory is that SD engaged in non-consensual sexual intercourse when DB was in an intoxicated state due to significant alcohol and marijuana consumption and was therefore incapable of giving consent. The Crown’s theory of how the DNA was located inside DB is that it was deposited during the sexual assault in the bedroom.

[129] The defence’s theory is that SD did not sexually assault DB in the master bedroom at the party. Nor, according to the defence, did SD and DB have intercourse in the master bedroom. They had a consensual sexual interaction for less than one minute in the bed while SJ was sleeping there: they made out and SD touched her genitalia. The defence’s theory of how the DNA came to be located inside DB is that after the party they engaged in consensual sexual intercourse for about 40 – 50 minutes in SD’s van in the parking lot behind the apartment building.

The R. v. W. (D.) Framework

[130] The central issue is credibility. This is not quite the typical he-said-she-said case where two parties present opposing evidence. That is generally the situation with sexual assault cases, since there is rarely a third-party witness. In the case at hand, there is a third party, SJ, who testified that she made observations, although limited, of what took place between SD and DB on the bed beside her.

[131] Whatever the factual scenario, the burden rests with the Crown to prove each element of the offence beyond a reasonable doubt. The law is clear that the trier of fact does not arrive at a decision by viewing the evidence as a credibility contest between the two sides. This would improperly place the burden of proof on the defence: [R. v. W. (D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 409, (S.C.C.)].

[132] Where the accused testifies and credibility is an important issue, the Crown’s burden of proving guilt beyond a reasonable doubt must be applied to the issue of credibility. The trier of fact is not required to wholly believe one witness or one set of witnesses. The trier can believe all, some, or none of any witness’s evidence.

[133] I must acquit SD if, considering the evidence as a whole, I believe his evidence. But even if I do not believe his evidence, but I have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole, I must acquit SD. In addition to favourable evidence by the accused and the defence witnesses, I must also consider any exculpatory evidence that might arise in the Crown’s evidence: [R. v. W. (D), at p. 409].

[134] The Crown is not required by the W. (D.) analysis to prove or disprove every fact beyond a reasonable doubt. The analysis is not to be applied piecemeal to each item or category of evidence unless the fact is an element of the offence or a defence: [R. v. Morin (1988), C.C.C. (3d) 193, at p. 205, (S.C.C.)]. The W. (D.) analysis comes into play where there is conflicting evidence on the essential elements of an offence charged and on the elements of any defence that is raised. The burden always rests with the Crown to prove guilt of the offence charged beyond a reasonable doubt; if a defence is raised, the Crown’s burden is to negative the defence beyond a reasonable doubt.

[135] In the case before me, SD is not required to disprove his guilt of sexual assault or to prove consent. The Crown has first to prove SD’s guilt of sexual assault beyond a reasonable doubt and then disprove consent beyond a reasonable doubt.

Elements of the Offence of Sexual Assault

[136] SD was charged with sexual assault under s. 271 of the Criminal Code. To make out the offence of sexual assault, the Crown must prove the essential elements:

• that there was touching;
• that the touching was of a sexual nature; and
• that there was an absence of consent by the complainant.

[137] The actus reus of sexual assault requires touching of a sexual nature without the consent of the complainant. The Crown must therefore disprove consent. Consent, for this purpose, means the actual subjective consent in the mind of the complainant at the time of the sexual activity. What the accused believes as to whether or not there was consent is not a factor in determining whether the actus reus has been established: R. v. Ewanshuk, [1999] 1 S.C.R. 440, at para. 23, and R. v. Cullillan, 2015 ONSC 969, [2015] O.J. No. 683 at para. 25 (Sup. Ct.).

Elements of the Defence of Consent

[138] Consent is defined in s. 273.1 of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. The provision lists various situations where consent is deemed to be absent. One of the enumerated situations refers to a complainant who is incapable of consenting to the activity. The Crown relies on that factor. The Crown proffers the toxicology report and witness evidence to prove that DB’s intoxicated state rendered her incapable of consent.

[139] The defence of honest but mistaken belief in consent is a possible defence to sexual assault. The Criminal Code under s. 273.1 circumscribes the situations where that defence is obtainable. The defence is not available where:

• the accused’s belief arose from the accused’s self-induced intoxication, or from recklessness or wilful blindness; or
• the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[140] The required mens rea or mental state of the offence is established if the accused either knew that the complainant was not consenting to the sexual activity, or was reckless or wilfully blind to the absence of consent: R. v. J.A., [2011] 2 S.C.R., at para. 24. Where the accused was aware that a complainant was intoxicated, he must show that he took reasonable steps to ascertain whether her apparent participation represented actual consent: R. v. T.S., [1999] O.J. No. 268, at para. 159 (Gen. Div.). Consent requires the conscious agreement of the complainant to engage in every sexual act in a particular encounter: R. v. J.A. at para. 31.

[141] There is no issue that the activity between DB and SD in the bedroom at the party involved touching of a sexual nature. The dispute centres on the nature of the sexual touching, whether it involved intercourse or not, and whether DB consented to it. The Crown relies principally on DB’s and SJ’s evidence and the forensic DNA and toxicology evidence.

[142] SD raises the defences of consent and honest but mistaken belief that DB consented to the sexual activity. His evidence is that DB consented to the sexual activity; alternatively, her conduct gave rise to an honest but mistaken belief that she was consenting.

[143] It is the Crown’s burden to disprove consent and honest but mistaken belief in consent. The Crown argues that SD knew or ought to have known from his observations of DB’s alcohol and marijuana consumption at the party that she was intoxicated and incapable of consent, but he was either reckless or wilfully blind to the absence of consent.

ANALYSIS

[144] After a careful review of the evidence I find that the Crown has proved beyond a reasonable doubt that DB was sexually assaulted when SD had non-consensual intercourse with her in the master bedroom. SD’s DNA was deposited in DB at that time which means SD was not wearing a condom. On all of the evidence, I accept that the sexual activity in the bedroom involved sexual intercourse.

Findings of Fact on the Nature of the Sexual Activity in the Apartment and DB’s State

[145] DB recalled being very intoxicated, dizzy, and sleepy when she lay down on the bed. For reasons set out earlier, I accept her evidence that she drank vodka before arriving at the party, and drank a considerable quantity of vodka and some beer and rum and smoked marijuana while she was there. She consumed these intoxicants quickly over a four-hour period. SJ confirmed that evidence. I find that DB was very intoxicated when she entered the bedroom.

[146] DB was fully clothed when she entered the bedroom. When DB lay down on the bed she immediately fell into a deep sleep. She went in and out of consciousness. SJ had a similar experience when she went to bed. They had consumed a similar amount of alcohol and marijuana. SJ’s evidence confirmed DB’s evidence of DB’s level of intoxication and her demeanour just before SJ went to bed at 3:30 a.m.

[147] The toxicology report also supports DB’s evidence about the amount of alcohol she consumed and her impaired mental and cognitive state. Jean-Paul Palmentier’s opinion is that it is possible with a person with DB’s alcohol levels, who is a light to moderate drinker, to have impaired consciousness, ranging from drowsiness to unconsciousness or passing out. Again, this opinion would have to be adjusted for a heavier drinker.

[148] In DB’s state of sleep or unconsciousness she did not remember much about what happened on the bed. This is consistent with the toxicology opinion that persons with DB’s level of alcohol can experience lapses in recall. But what she did recall is being slapped very hard on the buttocks one time followed by other less intense slaps. With the first slap, she opened her eyes. But she could not see who did this because she could not stay awake. She went right back to sleep and drifted in and out of consciousness. DB said she remembered being pushed and pulled and she felt a bouncing feeling. She felt as though this was the bed spinning.

[149] On DB’s mental state at this time, SJ confirmed DB’s evidence that DB had trouble focussing and was confused as to why she was yelling at her. After SJ yelled for them to get out, DB got off the bed. DB said she was in a dream-like state, weak and disoriented and stumbling as she walked. The toxicology report supports DB’s evidence that persons with DB’s alcohol levels can experience a lack of co-ordination.

[150] I considered SD’s evidence that DB was not drunk, together with his observations, discussed earlier, of her substance consumption throughout the night. I also looked at MA’s general statement that everyone at the party was drunk and his contradictory statement that DB was not intoxicated. I find that MA was clearly attempting to assist his friend by giving that evidence. I also considered the Crown evidence of SJ that DB was walking fine after she got off the bed. Looked at in view of the evidence on a whole, none of that evidence raises a reasonable doubt in my mind about DB’s intoxicated state and her incapacity to give consent.

[151] SJ woke up because of the movements on the bed and the sound of sex noises right beside her. SJ testified the lights were off in the bedroom and she could hear noises but could not see faces or facial expressions. SJ got up and turned on the light. She saw DB lying on her back on the bed with no pants or panties on. She just had her top on. SJ saw SD in the bedroom with his pants pulled down. There is also the fact that later a bloodied tampon was found under the bed on the right side where SB and SD had been.

[152] When the lights were off neither DB nor SJ could see that the person in the bed with DB was SD, not until the lights were on. DB could have claimed in retrospect, but did not, that she knew it was SD when she opened her eyes after being slapped on the buttocks. That she did not do this, I find, supports her credibility.

[153] I am also satisfied by SJ’s evidence in the context of all the evidence that SD’s pants were down when she turned on the light and that SD was not fully clothed as he claimed.

[154] I add the evidence of DB’s reaction after she woke up at her apartment and when she was at the hospital.

[155] SJ confirmed DB’s evidence that when she first spoke to DB on the phone, DB was groggy, “out of it”, and confused when SJ told her she had been intimate with SD. I found this evidence credible. After she got up, DB discovered she had no underwear on and her tampon was missing. I find that DB’s feelings of anger and humiliation when she put all the pieces together are also credible. The sexual assault evidence kit findings confirm DB’s account of the soreness on her body. The forensic evidence discloses bruises and pain. It also confirms that she was menstruating, and that SD’s DNA was inside her body.

[156] Officer Hasiuk’s evidence supports the genuineness of DB’s feelings of anger and humiliation. The officer gave graphic testimony about DB’s hysterical, uncontrollable crying over what had happened to her and described her swollen red face. The officer remained with her at the hospital for support for some two hours.

[157] I have addressed a number of SD’s credibility problems that I find undermine his trustworthiness as a witness. I find the area of his testimony that is most problematic is the unexplained time discrepancy between entering the bedroom at 3:30 a.m., having a one-minute sexual encounter, and leaving the apartment at 6:30 a.m. SD’s evidence was that he and DB left the party between five and 15 minutes after the sexual encounter. SD testified that he was “very sober” at the end of the party, so intoxication cannot explain the discrepancy. In the end, he did not resolve this.

[158] That credibility problem, combined with the others, lead me to reject his evidence that he did not have sexual intercourse with DB. There is also the fact that SD’s DNA was located in her body. The defence’s position is that the DNA was deposited during intercourse in the van. But even if that were true, that does not preclude it also being deposited during the encounter in the bedroom. I will deal later with my findings on the evidence regarding the van.

[159] In summary, I find it can reasonably be inferred from the following facts that SD sexually assaulted DB by engaging in non-consensual intercourse with her in the bedroom:

• DB was in a very intoxicated state and went into a deep sleep, going in and out of consciousness when she was on the bed.
• She did not know what was happening to her.
• She felt herself being bounced, pushed and pulled.
• SJ was awakened by the movement of the bed and the sex moans coming from beside her.
• When DB woke up she was lying on her back without out her pants or panties on.
• When SJ turned on the light she saw DB lying on her back without her pants and panties and saw SD with his pants pulled down.
• A tampon was found under the right side of the bed where DB and SD had been.
• There is no evidence SD was wearing a condom resulting in SD’s DNA being located inside DB.

[160] I looked at SD’s account of the sexual activity in the bedroom, in the context of the evidence as a whole, and this did not raise a reasonable doubt in my mind of his guilt. Nothing in the evidence raises a reasonable doubt about this. I also looked at SD’s and MA’s evidence that minimized DB’s level of intoxication. None of this raises a reasonable doubt that DB was incapable of consent.

[161] Nor is the defence of honest but mistaken belief available to SD.

[162] There is evidence that he observed DB as she arrived at the party with an open vodka bottle. He saw her with beers, a red cup and her vodka bottle in her hand. He was with her when she smoked marijuana and drank rum.

[163] When SD gave his account of the sexual activity in the bedroom, he was quite detailed and systematic. However, he did not, as part of his narrative, give evidence of any steps he took to satisfy himself of her consent. There is no evidence of DB’s conscious agreement to engage in every aspect of the sexual activity. SD did not give evidence about confirming consent until the end of his testimony about the incident in the van.

[164] I am satisfied on the evidence as a whole that the Crown has disproven beyond a reasonable doubt the defence of honest but mistaken belief in relation to the sexual activity in the bedroom.

Findings of Fact on the Nature of the Sexual Activity in the Van and DB’s State

[165] Before I move on to my findings, I must query the manner in which the evidence about the van came to light.

[166] While in the normal course of a criminal trial the accused is not required to disclose a defence in advance, there are some exceptions. One such exception is found in the application requirements of s. 276 which require the defence on notice to disclose sexual conduct of the complainant upon which it seeks to cross-examine at trial. The defence did not provide proper notice to the Crown or the court and attempted to file an application without an affidavit. I adjourned the s. 276 hearing until the next day to allow the defence to file a proper application.

[167] The next day, the defence filed an affidavit containing the two allegations about DB’s sexual conduct which I rejected as running afoul of the twin myths principle. Importantly, before the start of the trial the defence had agreed the DNA was from SD. But, as discussed earlier, the allegation about the van, where the defence claims the DNA was produced, was not the subject matter of the application.

[168] My concern is this. The defence’s wish to cross-examine on DB’s sexual conduct was a live issue from the start of the trial. Yet the issue of the van did not arise until after DB had testified when SD was giving testimony which means the defence did not raise this critical evidence with DB, the other participant in the alleged van episode. This evidence avails the accused of a viable alternative explanation for the presence of SD’s DNA. This leaves in the air the question of why the defence did not properly advance such a potentially helpful defence.

[169] This casts doubt in my mind about SD’s account. And this is not to mention questions I have about the level of physicality and stamina required of DB on SD’s account of her role in the 40 – 50 minute incident, given her advanced level of intoxication. However, even taking SD’s evidence at its best, he has a more serious consent issue to overcome given his evidence that DB drank still more alcohol in the van. For this reason, I find the Crown’s task to disprove consent and honest but mistaken belief is less onerous with respect to the alleged van episode.

[170] I turn now to the evidence.

[171] DB’s memory about being in the van is essentially blank. All she remembers is being in the front passenger seat and SD masturbating beside her in the front driver’s seat. After that she remembers nothing until she woke up on her apartment floor hours later at 6:30 p.m. Only SD has a memory of the 40 – 50 minutes of intercourse in the van. Given DB’s level of intoxication when she left the party, I do not doubt her lack of recall. Again, this is confirmed by Jean-Paul Palmentier’s expert opinion.

[172] SD’s evidence confirming consent did not come as a natural part of his narrative, but rather in answer to a leading question by his counsel toward the end of his testimony. Defence counsel asked him, in terms of confirming consent, what steps he took.

[173] SD’s answer seemed contrived. He testified that when he was embracing and consoling her, he tried to ease back but she kept holding him. SD said he thought she wanted more consoling so he stroked her back and she stroked his. He said they then moved into more intense sexual interactions leading to sexual intercourse. SD’s disingenuousness is emphasized by his original claim that she was not intoxicated which raises the question of why he would even need confirmation of consent.

[174] On SD’s own evidence, DB had half of her mickey left when she got into the van. He took a few swigs of it but DB drank the rest. This would put DB in a more advanced state of intoxication than in the apartment which further negates her capacity to consent. Clearly, this evidence supports the Crown’s case. It renders the defence of honest but mistaken belief in her consent even more futile and makes SD’s answer to what steps he took to confirm consent seem even more contrived.

[175] There is no evidence of DB’s conscious agreement to engage in any sexual activity in the van. I am left with the inescapable conclusion that when SD engaged in sexual intercourse with her he either knew she was incapable of consent or ought to have known but was reckless or wilfully blind to the absence of consent.

CONCLUSION

[176] For all the foregoing reasons, I find the Crown has proven beyond a reasonable doubt SD’s guilt of committing a sexual assault on DB contrary to s. 271 of the Criminal Code. Nothing in the evidence, viewed as a whole, raises a reasonable doubt in my mind of his guilt. The Crown successfully disproved the defences of consent and honest but mistaken belief beyond a reasonable doubt.

VERDICT

[177] For the foregoing reasons, I am satisfied that the Crown has proven SD’s guilt beyond a reasonable doubt on the one count on the indictment.

[178] I therefore find SD guilty on count 1 on the indictment and a conviction will be entered accordingly.

Allen J.

Released: September 25, 2015

CITATION: R. v. S.D., 2015 ONSC 5959

COURT FILE NO.: CR-14700003700000

DATE: 20150925

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

S.D.

REASONS FOR DECISION

Allen J.

Released: September 25, 2015