ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 13-00018-00MO
DATE: 2015-12-03
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.T.F.A.
Accused
S. Haner, for the Crown
James Weppler, for the Accused
HEARD in Gore Bay: December 3, 2015
BAN OF PUBLICATION PURSUANT TO S. 486.4
OF THE CRIMINAL CODE OF CANADA
ORAL RULING ON DIRECTED VERDICT
DEL FRATE, J.
[1] At the conclusion of the evidence, the accused brings a motion for a directed verdict on Count #3 of the indictment being committing a sexual assault contrary to s. 271 of the Criminal Code of Canada.
[2] The accused submits that there is no evidence that he was awake at the time that the hand was placed underneath her panties and in the vaginal area. As such, there is no specific intent to commit the offense.
[3] The Crown submits that even though the complainant believed that the accused was asleep when she awoke, it is up to the jury to determine on all of the evidence whether the accused was asleep.
[4] The facts of this case have been discussed in numerous other rulings that I have made prior to trial and during trial. I do not plan on repeating them. However portions of the complainant’s testimony dealing with this issue must be addressed.
[5] In examination in chief the complainant testified that one night she awoke to find the accused lying next to her. She noticed that his hand was underneath her panties and covering her vagina.
[6] The following exchange then took place:
Crown: When that happened, E., did you look at S. at all?
Complainant: No, I just felt a hand down there and it wasn’t mine.
Crown: Did you have any contact with him at all, like, verbal
contact, did you speak to him?
Complainant: Not that I remember no. I tried to forget.
Crown: Okay, but when it was happening, like, when you woke up
and realized his hand was there did you speak to him?
Complainant: No, I just pushed it away and I got up and left the room.
Crown: Are you able to say whether he was awake?
Complainant: No. I wasn’t looking at him. I had my back turned towards
him.
[7] In cross-examination, the following exchange took place:
Defense: There was one incident where you said you took the hand out
of your pants and got up correct?
Complainant: Yes.
Defense: No words were spoken that you can remember?
Complainant: I didn’t say any words, I just took it out and I walked out of
the room.
Defense: And S. did not say anything to you?
Complainant: No, I think he might have been sleeping, that’s why he didn’t
say anything.
Defense: So, he could have been asleep when this incident happened?
Complainant: Yeah, he told me he was asleep.
[8] In my view, the decisions of R. v. Munoz, (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134 and R. v. Monteleone, 1987 16 (SCC), [1987] S.C.J. No. 52 are determinative of this issue. As stated in Monteleone at para. 8:
Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.
[9] In this case we have a situation where there is some evidence that he may have been asleep and some that the complainant states she was not able to say whether he was awake. The accused denies that it ever took place. It is up to the jury to decide what happened.
[10] However, I must add that in my charge to the jury I will review the evidence given on this particular point and the evidence of the accused that this incident never happened. I will also instruct them that if on all of the evidence, on this count they accept that he was asleep or if they have a reasonable doubt about whether he was asleep, then they must acquit since a person cannot form the intent if he or she is asleep.
[11] I will also be charging the jury that they must consider the elements of each count separately and not use the evidence in one count to buffer or support the evidence in another count.
[12] Order to issue as per reasons.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: December 3, 2015
COURT FILE NO.: CR 13-00018-00MO
DATE: 2015-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.T.F.A.
ORAL RULING ON DIRECTED VERDICT
BAN OF PUBLICATION PURSUANT TO S. 486.4
OF THE CRIMINAL CODE OF CANADA
Del Frate, J.
Released: December 3, 2015