CITATION: R. v. G.F. and R.B., 2016 ONSC 3465

COURT FILE NO.: CR 14-040

DATE: 20160609

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.F. AND R.B.

Defendants

S. Scharger, for the Crown

A. Heath, for the Defendant, G.F.

B. Heath, for the Defendant, R.B.

HEARD: March 7, 8, 9; May 9, 10 , 2016

Reasons for Judgment

E. J. Koke J.

THE CHARGES

1G.F. and R.B. have pleaded not guilty to sexually assaulting 16 year old C.R.. They do not deny that they engaged in sexual acts with Ms. C.R. but they submit that Ms. C.R. consented to these acts. The Crown alleges that Ms. C.R. was impaired due to excessive alcohol consumption and was unable to provide consent.

BACKGROUND

2On the July 1, 2013 Canada Day long weekend C.R. accompanied her family on a weekend camping holiday to a wooded area north of Parry Sound, Ontario. C.R. had turned 16 years old the previous spring, on […], 2013.

3C.R.’s family included her mother and stepfather, L.D. and C.D., and her younger brother C.. They were accompanied by four of her mother’s co-workers who were employed with her at the same manufacturing plant in Milton, Ontario.

4Ms. L.D.’s co-workers included the two accused, G.F. and R.B.. Mr. G.F. was 42 years old at the time and he and Ms. R.B. had been in a common law relationship for about 13 years. The other two co-workers were referred to at trial only as R. and S..

5They arrived on Friday, June 28. The campsite was not in an organized campground but on a parcel of Crown land adjacent to a river and a lake.

6Mr. G.F. and Ms. R.B. set up a hard top camper trailer. The sides of this trailer were made of canvass. There were two beds which extended from the trailer at each end. Mr. G.F. and Ms. R.B. slept in the trailer and the trailer was also used by the members of the group as a place to store food, snacks, alcohol and other drinks.

7R. slept in his pick-up truck. He had used his truck to pull the camper trailer to the camp site and the trailer remained hitched to the trailer throughout the weekend. C.R. and her family slept in a tent, which was situated about 20 feet from the trailer. S. also slept in a tent, which was located a little closer to the trailer.

8Over the course of the weekend members of the group spent their time fishing, jumping into the lake from a cliff, cooking, swimming and sitting around the fire. Mr. G.F. had taken two jet skis and a motorized dirt bike with him and he gave members of the group rides on these.

9They packed up and returned home to Milton on Monday, July 1, 2013.

FACTS

Sunday Night…Evidence of C.R.

10According to C.R., her parents and Mr. G.F. and Ms. R.B. agreed that she and her brother C. would sleep in the trailer with Mr. G.F. and Ms. R.B. on Sunday night.

11C.R. testified that while sitting around the fire on Sunday night Mr. G.F. gave her several shots of alcohol, as well as some beer. She began to feel nauseous and decided to lie down in the tent trailer. While she was in the trailer Mr. G.F. came in and offered her some more shots of alcohol. He came in a number of times, and she estimates that he gave her between 8 and 10 shots in total.

12C.R. stated that she was only 16 years old and had limited experience with alcohol at the time. After consuming the alcohol given to her by Mr. G.F. in the trailer she began to feel “super sick”. She threw up a number of times, spilling vomit over the mattress cover. Eventually she passed out or fell asleep. The last thing she remembers before going to sleep was playing with her I-Phone.

13C.R. testified that she woke up when she felt her pants and underwear being pulled down. She heard Mr. G.F. telling Ms. R.B. to “lick her pussy”, which Ms. R.B. proceeded to do to C.R. while Mr. G.F. held her down. Mr. G.F. then had vaginal sex with Ms. R.B. while Ms. R.B. performed cunningulous on C.R..

14Next, Mr. G.F. moved C.R. by her hips toward him, inserted his penis in her vagina and pushed her face into Ms. R.B.’s vagina and directed her to “eat her pussy”.

15C.R. testified that while this was happening she felt dizzy, intoxicated and scared. She was in shock…these were her parent’s friend who were doing this to her. Although she realizes now that she could have called for help she explained that she felt sick and confused and felt out of control and so she kept quiet. The last thing she remembers is Mr. G.F. and Ms. R.B. having sex together before she passed out.

16When C.R. woke up Monday morning she was lying on the bed naked, next to Ms. R.B.. This was unusual because she usually slept in her underwear. Her breasts were tender and her vagina was sore and swollen. She could not find her shirt or her I-Phone. These items have never been located. After exiting the trailer she helped her parents pack up and then drove with them back to Milton. On the drive home she covered herself with a blanket and said very little.

17Upon her arrival home C.R. took a shower.

18C.R.’s family had agreed to watch fireworks with her aunt and uncle J.H. and M.H. on Monday evening. After arriving home C.R. send a text to her aunt J.H., informing her that she needed to talk to her. A copy of the text was entered into evidence and reads as follows:

C.R.…Aunt J.H. its C.R. I really needa talk to you

You’re the only one I fell safe telling this to

J.H.…Ok I think we will be over soon. Just going to eat

What’s up?

C.R.…Okay its really bad I ll tell you when you come over

this is my moms phone.

J.H.…OK

19C.R. testified that she felt more comfortable telling her aunt about what had transpired than her mother. She also explained that she did not tell her parents about this incident at the campsite because she was aware that Mr. G.F. and Ms. R.B. and her mother were friends and she did not want to upset their relationship. She was afraid too that her parents would feel like it was their fault and that they were responsible for this incident by bringing C.R. along on the camping trip. Also, she knew that Mr. C.D. would be very upset and she wanted to protect her younger brother from what she expected would erupt in a violent confrontation between Mr. C.D. and Mr. G.F..

20While the fireworks were in progress C.R. took her aunt aside and shared with her the details about what had transpired the night before.

21Following the fireworks J.H. informed her husband M.H. what C.R. had told her and they agreed that they should tell C.R.’s parents. M.H. and J.H. then drove to C.R.’s home and talked to L.D. and C.D. about what C.R. had shared with J.H..

Sunday Night…Evidence of G.F.

22Mr. G.F. denies that there was an agreement in place that C.R. and her brother would sleep in the trailer with him and R.B. on Sunday night. He agrees that he gave C.R. a beer and two half ounce shots of alcohol by the fire but denies that he gave her any alcohol after she went to the trailer.

23Mr. G.F. testified that Ms. R.B. first advised him that C.R. had thrown up in the trailer. He told C.R.’s mother about C.R. throwing up but she did not seem overly concerned. He stated that he went to the trailer to check up on C.R.. Before entering the trailer he observed that the mattress cover from the trailer was lying outside the trailer with a large orange coloured stain on it. Upon entering the trailer he asked C.R. how she felt and she said “I feel fine now”.

24Mr. G.F. testified that after C.R. went to the trailer he spent most of his time fishing by himself. When he entered the trailer to go to sleep around 3:15 a.m. he was surprised to see that C.R. was still in the trailer, and that she was lying naked under a blanket with Ms. R.B..

25Mr. G.F. testified that he was in the mood to “get randy” with Ms. R.B., and so he dropped hints to encourage C.R. to leave. Rather than leave, C.R. informed them that she liked them and that she wanted to remain in the trailer. He then asked C.R. if she had kissed Ms. R.B. yet, and to his surprise C.R. and R.B. began to kiss. After seeing them kiss, he asked Ms. R.B. to expose one of her breasts, which he suggested in an attempt to encourage more sexual activity between C.R. and Ms. R.B..

26Mr. G.F. was uncertain as to whether he was welcome to participate in the sexual activity and so he began to rub C.R.’s thigh over the blanket. C.R. responded by removing the blanket to let him touch her bare thigh, which he interpreted as her way of consenting to this touching. Thereafter, the three of them participated in what he described as consensual oral and vaginal sex.

27Mr. G.F. testified that throughout the sexual encounter he repeatedly asked C.R. if she was “okay” with engaging in sex with them and she assured him that she was. C.R. also told him and Ms. R.B. that she would like to go to their house and engage in sex with them more often. According to Mr. G.F., C.R. was coherent and alert throughout the entire sexual encounter.

28When he woke up in the morning C.R. was sleeping naked on the bed with them. He left the trailer and tended to the fire. Later, C.R. exited the trailer and she acted as if nothing unusual had happened.

Dirt Bike Conversation

29Mr. G.F. testified that he took C.R. for a ride on his dirt bike on Sunday afternoon. He reported that this was a brief ride of no more than a mile. During this ride C.R. shared with him some details of her sexual life. She told him that she was seeing a “black guy”, that she was interested in older women and that she did not want her boyfriend to know that she had “done it” with a girl. She also informed him that she was interested in engaging in a threesome, but that she would like to have a threesome without her boyfriend.

30Mr. G.F. responded to these comments by telling her that this was a perfect weekend “to try it out”, and he mentioned that Ms. R.B. was bi-sexual. In cross-examination Mr. G.F. denied that his comment about this being a perfect weekend to “try it out” referred to sexual activity…it was a comment intended to open the door to any new experiences she might be interested in, sexual or non-sexual. An example of a “new experience” was someone riding a bike for the first time.

31C.R. agrees that they had a conversation about her boyfriend when she was out on the motorcycle ride but denies that she told Mr. G.F. that she was interested in a “black guy” and in older women or that she wanted to engage in a threesome. She testified that she did not have any romantic or sexual interest in older females. With respect to Mr. G.F. and Ms. R.B., she stated that they were much older than her and they were her parents’ friends and so she viewed them as adults who she could look up to. She did not know them before this weekend and she did not even know their last names…and she had no sexual or romantic interest in them.

The Jet Ski Incident

32Over the course of the weekend Mr. G.F. gave various members of the group a ride on his jet ski. He testified that on one such occasion he and C.R. were in the water and her top came off. He responded by telling C.R. that she had nothing to be ashamed of and that she had a nice body. According to Mr. G.F., C.R. than rolled over in the water on her back and exposed her breasts to him.

33Mr. G.F. testified that it is not unusual for 16 year old girls to expose their breasts to him…it has happened to him on other occasions.

34C.R. agrees that her top came off while she was on the jet ski with Mr. G.F.. Mr. G.F. then told her that she had a nice body and he asked her to show him her breasts. She denies that she rolled over and exposed her breasts to him. She testified that she was confused when Mr. G.F. asked to see her breasts…this was supposed to be her mother’s friend. She went back to the campfire and informed Ms. R.B. what Mr. G.F. had asked her to do but Ms. R.B. suggested he must have been joking.

C.R. witnessing Mr. G.F. and Ms. R.B. having Sex

35Mr. G.F. testified that during the course of the weekend Ms. R.B. sustained an injury to her leg. While tending to the injury in the tent trailer they decided to engage in some sexual activity. While they were so engaged C.R. entered the camper, without knocking, and remained for a while, showing no embarrassment at what she was witnessing.

36C.R. reports that she did witness Mr. G.F. tending to Ms. R.B. injury in the trailer, but that she knocked before entering the trailer and she only observed Mr. G.F. attending to the injury; she insists that they were not engaged in sex.

The Cliff Jumping Incident

37One of the activities the group engaged in was jumping into the lake from a cliff. On one occasion when C.R. jumped in the water the top half of her bathing suit came off. She swam to her father who was on a jet ski and he provided her with a life jacket to cover herself up. Mr. G.F., was operating an audio-video recorder and a copy of the video was played in court. It shows that Mr. G.F. zoomed in on C.R. with the camera after her top came off and he then followed her with his camera as she swam to the jet ski. C.R. was successful in keeping her back to the group until she had covered up and Mr. G.F. responded by commenting: “this sucks, I didn’t get a picture.”

38Following this incident, Mr. G.F. encouraged Ms. R.B. to remove her top and flash her breasts to the group. Notwithstanding the fact that she was in the company of 16 year old C.R. and her 7 year old brother, Ms. R.B. removed her top while standing on the top of the cliff and exposed her breasts to the entire group while Mr. G.F. videotaped the incident.

Comments to L.D. re C.R.

39C.R.’s mother L.D. testified that at one point during the weekend Mr. G.F. referred to C.R. as “cute”. L.D. responded by reminding him that C.R. was only 16, to which Mr. G.F. replied: “maybe then I’ll see her when she is 18”.

Evidence of J.H.

40Ms. J.H. confirmed C.R.’s account of her conversation with her aunt at the fireworks display. She also testified that C.R. expressed concerns about the fact that Mr. G.F. was not wearing a condom and that she was afraid that she may have contracted an STD or that she might be pregnant.

Evidence of L.D. and C.D.

41Ms. L.D. and Mr. C.D. confirmed that C.R. was very quiet on the drive home to Milton, which was unusual for her. They also confirmed that C.R. had limited drinking experience. Ms. L.D. denies that she was told that C.R. had vomited in the trailer.

42L.D. also confirmed that it was her understanding that it had been agreed that C.R. and her younger brother would sleep in the trailer with Mr. G.F. and Ms. R.B. on the Sunday night. C. later changed his mind and decided not to sleep in the trailer.

Evidence of M.H.

43After C.R. reported this incident to her aunt J.H., she shared the information with her husband M.H.. They then drove to C.R.’s home and informed L.D. and her step father, C.D..

44Mr. M.H. reported that Mr. C.D. was furious, and he walked to a fence and punched it about 10 times. Mr. M.H. called Mr. G.F. and he testified that the following exchange took place:

Mr. M.H.…What did you do to my niece?

Mr. G.F.…Nothing

Mr. M.H.…Ya right, she’s freaking out, it’s not as if nothing happened (or similar words);

Mr. G.F.…All I did was, she slept in bed naked next to us. Nothing happened.

Mr. M.H.…you think that is OK, she’s 16?

Mr. G.F.…No

DNA Evidence

45The Centre of Forensic Sciences conducted DNA analysis of swabs taken from the crotch of C.R.’s underwear. The Centre reports that Mr. G.F. cannot be excluded as the source of male DNA taken from the underwear. The probability that a randomly selected male individual unrelated to G.F. would coincidentally share the observed DNA profile is estimated to be, at most, 1 in 877 Caucasians.

46Female DNA was also located in the crotch of the underwear. The Centre reports that this could merely be a vaginal secretion, but odds are that it is saliva. Ms. R.B. was excluded as the donor of this DNA.

Toxicology Report

A toxicology report prepared by the Centre of Forensic Sciences was also filed with the court. The report indicated that neither alcohol nor drugs were detected in either blood or urine samples collected from C.R..

The Sunday Night Campfire

47An audio-video recording of the group around the campfire on Sunday evening was played at trial. The camera was operated by Mr. G.F. and for an extended period of time the recording focused on the three women (L.D., R.B. and C.R.) dancing together to music. The men did not participate in the dancing.

48While the women were dancing Mr. G.F. made a number of comments including comments such as: “If I was a girl I’d be fuckin jealous too; I can always strap on a cock; bad girls are better”.

49The Crown suggested to Mr. G.F. that these comments reflected the fact that he was sexually aroused by the dancing. He responded “maybe” but then corrected himself but stating that he was just kidding.

Evidence of Nurse Cathie Cullen

50Cathie Cullen, a sexual assault nurse examiner examined C.R. shortly after 12 midnight on July 2, 2016. Ms. Cullen reports that she observed a small contusion on C.R.’s breast, as well as an abrasion to her labia minora. C.R. reported to her that it “was burning when she peed”.

FINDINGS AND ANALYSIS

51The main issue in this case is one of credibility. The parties agree that Mr. G.F. and Ms. R.B. engaged in sexual relations with 16 year old C.R.. If I find, beyond a reasonable doubt, that C.R. was unable to provide her consent to this sexual activity because she was impaired by alcohol consumption, and that Mr. G.F. and Ms. R.B. knew or should have known that she was unable to give her consent, then they are guilty of the charges against them. If I find that C.R.’s ability to give consent was not impaired by alcohol consumption and that she freely gave her consent, then the two accused persons are not guilty.

52I have considered the evidence and the submissions of counsel, and after doing so I have concluded that C.R. did not consent to the sexual activity, and that Mr. G.F. and Ms. R.B. are guilty of the offence of Sexual Assault. I have come to this conclusion for the following reasons:

Consistency of C.R.'s Evidence

53C.R.’s testimony was provided in a straightforward fashion, without any hint of fabrication or embellishment. At no time did she attempt to elicit the sympathy of the court. What impressed me the most about her evidence was its consistency with other accounts of the Sunday night incident which she provided on different occasions, and it was corroborated by the other evidence at trial. Examples of this consistency include:

a) C.R. was examined and cross-examined at length at the preliminary hearing. Few if any inconsistencies with her evidence at this hearing were brought out in her cross-examination at trial. Her evidence was also consistent with her statement to the police and the information she gave her aunt J.H..

b) The injuries noted by Nurse Cullen were consistent with C.R.’s evidence that the defendants sucked and licked her breasts, and the vaginal intercourse by Mr. G.F..

c) C.R.’s evidence at trial concerning the amount of alcohol she consumed is consistent with the presence of a “basketball sized” stain of vomit on the mattress cover. It is also consistent with her evidence that she felt nauseous and that she was so impaired by alcohol consumption that it did not occur to her that she could call out for help.

d) C.R.’s testimony that she had no romantic interest in Mr. G.F. and Ms. R.B. is consistent with the fact that they were more than twice as old as her, they were her parents’ friends, and that at most she may have been introduced to them once or twice in the past when visiting her mother at work.

e) The fact that she left the trailer the following morning without her I-Phone (which was never recovered) is consistent with her evidence that she woke up in a state of confusion and was anxious to leave the trailer.

f) C.R.’s evidence that Mr. G.F. and Ms. R.B. were not engaged in sexual relations when she entered the tent the previous afternoon is consistent with the fact that the trailer was used to store items by all members of the group…it is therefore unlikely that Mr. G.F. and Ms. R.B. engaged in sex in the trailer in the afternoon without at least locking the door.

g) The evidence of C.R.’s mother and step-father that she was unusually quiet on the way home is consistent with her evidence that she was still hung over and in a state of shock and confusion on the drive home.

h) C.R.’s decision to talk to her aunt about the incident as soon as possible is consistent with the behaviour of someone who has undergone a traumatic incident and requires guidance from an adult, and is inconsistent with someone who has voluntarily engaged in sex.

i) C.R. explained in her evidence that one of the reasons she did not report this incident the morning after it occurred was because she was afraid it would result in a physical confrontation between her step-father and Mr. G.F.. The evidence of M.H. that C.D. punched a fence 10 times after he heard about the sexual incident supports C.R.’s fear of Mr. C.D. becoming violent.

j) C.R.’s fear that she might have contracted an STD or might be pregnant supports her evidence that she did not plan to engage in sex with Mr. G.F. and Ms. R.B.

Inconsistencies in Evidence of Mr. G.F..

54In contrast with the evidence of C.R., I find that Mr. G.F.’s evidence is riddled with inconsistencies. These inconsistencies include the following:

a) Mr. G.F. denied that he had a sexual interest in C.R.. This is contradicted by the following evidence:

i) zooming in on C.R. with his video camera after her top came off in the water,;

ii) telling C.R.’s mother that her daughter was cute and that he would like to revisit his relationship with C.R. when she turned 18;

iii) telling C.R. that she had a nice body;

iv) expressing disappointment that “this sucks, I didn’t get a picture” when C.R.’s top came off and he couldn’t get a clear shot with his video camera;

v) asking her in the trailer if she had kissed Ms. R.B. yet.

vi) Engaging in a discussion with C.R. about her love life during the dirt bike ride.

b) Mr. G.F.’s denial that he was in a state of heightened sexual arousal throughout the weekend is also contradicted by the evidence of some of the comments he made during the weekend, such as the ones by the fire when he talked about “strapping on a cock” and “bad girls are better”.

c) Mr. G.F.’s denial that there was an agreement that C.R. and her brother would sleep in the trailer on Sunday night is contradicted by the fact that C.R. retreated to the trailer when she began to feel nauseous, and remained in the trailer after throwing up. It is also contradicted by the evidence of L.D..

d) Mr. G.F.’s evidence that L.D. was informed that her daughter had vomited but did not seem concerned is inconsistent with both L.D.’s testimony and with the normal reaction of a loving mother. It is consistent with the fact that Mr. G.F. had a reason for concealing C.R.’s condition from her mother.

e) Mr. G.F.’s evidence that C.R. acted normal in the morning is inconsistent with the behaviour of a teenage girl who has just lost her I-Phone.

f) Mr. G.F.’s evidence is that he repeatedly asked C.R. whether she was OK with engaging in sex with him and Ms. R.B. and she agreed that she was. This is inconsistent with his evidence that C.R. voluntarily engaged in sex with him and Ms. R.B.. He would not have required these assurances if she had willingly consented to the sexual activity; the most obvious explanation for this testimony is that he were attempting to defend his own conduct.

g) Mr. G.F.’s evidence that he had a lengthy conversation with C.R. while on the dirt bike ride about her boyfriend and sexual preferences is inconsistent with the fact that this was very brief ride on a noisy motorcycle with no stops along the way. It is unlikely that an intimate and detailed conversation of this nature would have taken place in such circumstances, especially since he and C.R. hardly knew each other. The obvious purpose of this testimony by Mr. G.F. was to paint C.R. as the sexual instigator.

h) Mr. G.F. suggested during his testimony that L.D. was anticipating a three way sexual relationship that weekend. This is not supported by any other evidence and is inconsistent with the fact that C.D. accompanied L.D. for the weekend, as did L.D.’s two children. In my view, this was an attempt by Mr. G.F. to normalize the activities in which he engaged with C.R. on the Sunday night.

i) Mr. G.F. insisted that he is not the kind of person who lies. This is inconsistent with the fact that he denied to M.H. that any sexual activity took place, only that C.R. slept naked with him and Ms. R.B.. In my view, the only reason he eventually agreed that he engaged in sex with C.R. was because his DNA was linked to her underwear.

j) Mr. G.F. admitted that he did not wear a condom, and there was no prior discussion about C.R. contracting STD’s or becoming pregnant. Given C.R.’s concerns about becoming pregnant or contacting STD’s it is difficult to accept that she consented to sex with these risks present.

k) In his testimony at trial Mr. G.F. attempted to “normalize” the three way sex by comparing it to other occasions when he and Ms. R.B. had sex with other couples. However, he agreed in cross-examination that there were differences…with C.R. there was no pre-existing rapport, no flirting and very little privacy.

l) Mr. G.F. agreed that C.R. had vomited, but yet insisted that she was eager and interested in having sex several hours later. The obvious inference to draw when someone vomits is that the person who vomits is unwell, and likely not interested in engaging in sex. Also, a person who vomits is generally not in the best condition to make decisions.

Discussion of Defence Arguments

a) Female DNA in C.R.’s underwear…not linked to Ms. R.B.

55The defence points to the fact that female DNA which was not linked to Ms. R.B. was detected in C.R.’s underwear; presumably this is evidence that C.R. was no stranger to such same sex relationships, such as those in which she allegedly engaged with Ms. R.B..

56C.R. explained that she shared an underwear drawer with her step sister, C.B.. They often exchanged clothes and the underwear in question belonged to C.B., not C.R.. C.B. may therefore have been the source of the female DNA profile. Also, C.R. had taken a shower and explored her own injury before a DNA swab was taken and this may have compromised any evidence of DNA from Ms. R.B..

57The fact that Ms. R.B.’s DNA was not detected on any of the items which were tested by the Centre for Forensic Sciences does not cause me to doubt C.R.’s testimony.

b) The Instability of the Trailer

58Mr. G.F. testified that the trailer was parked on uneven ground and all of the stabilizing feet did not make contact with the ground. For this reason the trailer was kept hitched to R.’s truck, to provide it with more stability.

59The defence argues that the sexual activity described by C.R. would have shaken the truck and woken up R. who was sleeping in the truck, or drawn attention to the trailer.

60This argument ignores the fact that the issue is not whether sexual activity took place in the trailer. Mr. G.F. admits that a significant amount of sexual activity took place on Sunday night. According to Mr. G.F., he and Ms. R.B. were also engaged in sexual activity when C.R. entered the trailer unannounced on Sunday afternoon. Apparently, the alleged instability of the trailer was not an issue at that time. Furthermore, the evidence is that R. had been drinking all day and even if he had woken up there is no reason he would have assumed that C.R. was involved in the activities which were taking place in the tent trailer. I am not persuaded that this argument assists the defence.

c) C.R.’s failure to report the incident to her parents immediately

61C.R. testified that she was afraid that her stepfather C.D. would become violent if she reported the incident to her parents with Mr. G.F. present. The evidence of M.H., that Mr. C.D. punched a fence ten times when he was told what had transpired in the tent confirms that her fears were well founded.

62Delayed disclosure of improper sexual conduct is not uncommon, especially in circumstances where such conduct involves children or adolescents. There is often an element of embarrassment or self-blaming involved in dealing with such conduct. I am reluctant in the circumstances of this case to impose adult expectations on C.R. when assessing her conduct on the morning following this incident.

d) The Absence of Alcohol revealed by the Toxicology Tests

63The significance of the toxicology findings is questionable. The samples were collected almost 24 hours after the events transpired, and the correspondence from the Centre for Forensic Sciences notes that if an individual vomits shortly after consuming alcohol, it is likely that the alcohol consumed would be expelled from the stomach, and thus not absorbed into the bloodstream.

64I do not believe these findings assist the defence in its argument that C.R.’s ability to consent to sexual activity was not impaired by alcohol.

e) C.R.’s Demeanour on the Cliff Jumping Video after losing her Top

65The defence submits that C.R.’s evidence that she was embarrassed following the loss of her bikini top after jumping into the water off the cliff is not borne out by her behaviour. The defence suggests she was enjoying the attention.

66Based on my own observations of the video, I am not inclined to agree that she was not embarrassed. What I saw was a 16 year old girl trying to hide her embarrassment behind a smile and giggles. Even if she was enjoying the attention, I am not convinced that this has any relevance to the main issue before the court, which is whether C.R. gave her consent to engaging in sexual activities with two of her mother’s friends.

f) C.R.’s failure to call for help while the Sexual Activity was taking place.

67The defence argues that if C.R. was coerced by the defendants into having sex she could have called for help. Her parents were in a tent only 20 feet away.

68C.R. explained that she was dizzy, afraid and in shock. She was in the presence of adults who were the same age as her parents, people who she normally looked up to and obeyed.

69In my view, C.R. was aware that the expectation from the adults in the tent trailer was that she was to remain quiet, and she did so. Although she could have called for help, given her condition at the time I am not prepared to impose this expectation on her when assessing the truthfulness of her evidence.

CONCLUSIONS

70The defence argues that notwithstanding her earlier complaints of feeling nauseous, an obviously sober and lucid C.R. actively and enthusiastically engaged in three way consensual sex later that evening with two adults she had just met, friends of her mother who were more than twice her age.

71Ms. R.B. did not testify. I find Mr. G.F.’s evidence to be unbelievable. It does not leave me with reasonable doubt as to his or Ms. R.B.’s guilt and in my view, the balance of the evidence at trial convincingly supports the conclusion that Mr. G.F. and Ms. R.B. forced C.R. into having non-consensual sex.

72Section 273.1(2)(b) of the Criminal Code indicates that no consent is obtained where the complainant is incapable of consenting to the activity. This applies in instances where a complainant is intoxicated.

73Accordingly, I find the two accused guilty of sexual assault as charged.

E.J. Koke SCJ

Released: June 9, 2016

CITATION: R. v. G.F. and R.B., 2016 ONSC 3465

ONTARIO

SUPERIOR COURT OF JUSTICE