CITATION: R. v. Walsom, 2017 ONSC 2160

COURT FILE NO.: CRIMNJ(P) 534/14

DATE: 2017 04 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

R. Prihar, for the Crown

• and -

BRADLY WALSOM

F. Genesee & E. Song, for the Defence

HEARD: February 28, and March 1, 2, 6 and 8, 2017, at Brampton

REASONS FOR JUDGMENT

Hill J.

INTRODUCTION

1In 2013, a 17-year-old alleged that, after a period of marijuana and alcohol consumption, she was sexually assaulted by Bradly Walsom. Mr. Walsom maintained that all sexual relations with the complainant were consensual. These conflicting accounts formed the centrepiece of the evidence heard in this trial.

FACTUAL BACKGROUND

The Principal Witnesses

2The complainant, S.W., was born […], 1995. In June of 2013, she was 17 years of age.

3In 2013, S.W. resided in Brampton with her parents and twin sister.

4T.W. the complainant’s mother, informed the court that by 2013 her daughter, who resided with her, a mildly intellectually delayed 17-year-old, had been diagnosed with bipolar disorder, ODD (oppositional defiant disorder) and ADHD (attention deficit hyperactivity disorder). Further intensive testing of S.W. by CAMH in 2014 resulted in an ASD (autism spectrum disorder) diagnosis.

5T.W. identified medication taken by S.W. in 2013. Each morning, S.W. took trazodone, epival and concerta, and at night, trazodone and epival. T.W. directly dispensed these medications to her daughter.

6S.W. informed the court that she now resides in New Brunswick. She has a young daughter. S.W. testified that her comfortable reading level is reading children’s books to her daughter. The complainant testified that she generally has an excellent memory but when medication, alcohol and marijuana are consumed it affects her mind. More than once, S.W. stated during her testimony that she did not want to be here at court –she wanted to be with her daughter. At times in her testimony, when unable to provide a clear response, S.W. remarked that the events about which she was questioned were four years ago (“This is so long ago”). Pressed on matters in cross-examination, S.W. stated: “I’m not lying … I could go to jail”.

7Bradly Walsom was born March 26, 1987. In June of 2013, he was 26 years of age. He had resided in Ontario and Manitoba. When he was 19 years of age, his daughter was 2 years of age – she is with her mother in Winnipeg.

8In June of 2013, the accused on his own evidence was a regular/frequent user of marijuana – it had a calming, relaxing effect. At this time, he had been back in Ontario for about nine months. Although he had been working, in June he was unemployed and supporting himself by Ontario Works cheques and “flying a sign off the side of the highway” which was a form of panhandling.

9Cameron Poole, a friend from out west, had arrived in Ontario a couple of weeks prior to June 26, 2013. They were residing in a room at the Motel 6 at 160 Steelwell Road in Brampton along with Poole’s large golden Labrador, Ziggy Marlee.

10Heather Walsom, the accused’s mother, testified that her son was diagnosed at age 12 or 13 years as bipolar and ADHD. He had anxiety and a hard time listening to, and getting along with, people. He also suffered from severe asthma. The accused did poorly at school and at times was disruptive and exhibited anger management problems. He was prescribed medications including Ritalin. The accused first left home at age 14 – he returned at ages 16-17 and then left permanently.

11Ms. Walsom testified that she became aware that her son was “self-medicating” with marijuana – depression and suicide thoughts gave way to him becoming very calm and clear-headed.

12At the outset of cross-examination, when asked to describe his memory of June 26 to 28, 2013, the accused responded that he recalled it “like the back of my hand … I remember it like it was yesterday”. Alcohol and marijuana consumption at that time had not impaired his memory. By the end of cross-examination, the accused conceded that with a number of relevant subjects, he was struggling to recall: “I have a hard time remembering things, yeah”.

June 26, 2013 – The Morning

13According to T.W., she supervised S.W. taking her medication between 7:30 and 8:00 a.m. on June 26, 2013 – just epival and concerta were administered.

14T.W. testified that during the morning of June 26, she went to the Bramalea City Centre with S.W. for mother/daughter time at the mall. At about mid-day, S.W. asked if she could go to the nearby library saying that she had not had time to herself. Because this was true, T.W. agreed telling S.W. when she would be expected back home consistent with her usual curfew of 5:00 to 6:00 p.m.

15In her in-chief evidence, S.W. stated that there were some things she did not recall about June 26, 2013 because events were a long time ago. In cross-examination, S.W. advised that she does not remember much of the day and that her mind tends to black things out.

16S.W. recalled that on June 26, 2013 she went to the Bramalea City Centre in Brampton with her mother. They got their nails done. Subsequently, she asked her mother’s permission to go to the nearby library to be on her own. With some hesitation, her mother agreed while telling her not to go to Tim Hortons as her mother did not approve of the persons who hung around there.

17Exhibit #5 at trial, is a video clip showing S.W. walking and seated in the library rotunda on June 26, 2013. S.W. was alone. She can be seen going out for a smoke and using her cellphone. At trial, she could not recall how long she was at the library. Until shown the video, S.W. had no recall of the contents depicting what she was doing.

The Complainant Meets the Accused

18According to S.W., she went to Tim Hortons on the Bramalea City Centre property to get a lemonade. Once there, she obtained her drink and then went outside for a smoke. She saw the accused (“Dirt”) and his friend (“Dreads”) get out of a cab “and then they were talking about a party”. While that was also S.W.’s position in her second police statement, in cross-examination, S.W. stated that only the accused spoke about holding a party. They asked other girls and asked her if she wanted to go to this party. While in her in-chief evidence S.W. stated that the other girls at Tim Hortons declined, in cross-examination she maintained that she thought “everybody” from Tim Hortons was coming for the party. S.W. variously testified in-chief that being a teenager, she liked to party, and, that she had not previously been invited to, or attended, a party. They said there would be “lots of fun”. The accused told her she was cute. He seemed nice. She accepted the invitation saying, “Why not”. She wanted to drink and get high.

19The accused testified that he frequented the Tim Hortons on the Bramalea City Centre property where he could connect with a drug dealer – “I would go there to grab my weed”.

20On the accused’s evidence, he and Dreads took a taxi from their motel to Tim Hortons on June 26, 2013. He wanted to cash his Ontario Works cheque at the Money Mart at the Bramalea City Centre. He first tried to make a marijuana connection at Tim Hortons but was unsuccessful. He next saw S.W. sitting on the ground outside Tim Hortons looking depressed. According to the accused, he approached S.W. and said, “Hey, you’re cute, do you want to come drinking”, receiving the answer, “Sure”. He made no reference to a “party”.

21The accused informed the court that he next went alone to cash his cheque. Returning after five minutes, he gave Poole about $200.00 as he owed him money – this would allow his friend to “go out and have some fun”. On returning to S.W., whose demeanour appeared normal, he told her that he had to get some alcohol. He told S.W. that Dreads would not be joining them as he did not drink alcohol.

22According to S.W., the accused stated that the party was at his hotel where he was staying until he got his own place. In cross-examination, S.W. stated that she knew her mother would not approve of her going to the party. However, she felt good that someone felt her cool enough to hang out with.

23S.W. described herself as a quiet 17-year-old in 2013, lonely and wanting to have friends. It annoyed her at times that her twin sister had more of a social life. In cross-examination, S.W. acknowledged being jealous of her sister as she had more fun – it was “my time to have fun”. In cross-examination, S.W. initially stated that she had not been jealous of her sister all her life before being confronted with what she had said in her June 28, 2013 police interview: “… to be honest, all my life, I’ve been jealous of my twin sister, ‘cause she always got to party and stuff, so I thought, okay what the hell?”

24Asked in-chief where she went after being at Tim Hortons, S.W. testified that she went with the accused to a location called Medusa’s Cave to smoke a shared joint produced by the accused. Under cross-examination, S.W. appeared less certain whether she smoked a joint alone or with the accused. The Cave is by a creek in a nearby park. To S.W.’s recall, she had smoked a joint three or four times before this date. In cross-examination, the count was “twice”. S.W. informed the court that with her disability medications, she knew she should not be smoking marijuana.

25The accused testified that he did not accompany S.W. to Medusa’s Cave to smoke marijuana. He had not smoked marijuana joints for years and has never been to Medusa’s Cave.

26In cross-examination, S.W. stated that marijuana consumption makes her happy, she smiles a lot and things seem brighter. S.W. testified in-chief that smoking the joint on June 26 made her feel weird – “it hit me hard”. In her in-chief testimony, S.W. stated that previous smoking of marijuana caused her to become goofy and to see things that were not there. The witness then added that it was only when she mixed marijuana with alcohol that she would hallucinate.

27Only in cross-examination of the complainant, was it disclosed that she had first met the accused about a week earlier when he volunteered to watch her bike, which had no lock, while she went into a store. He had been very nice to her.

28In his testimony, the accused recalled meeting the complainant about a week earlier outside Tim Hortons. Finding her upset and distraught about someone possibly stealing her bike, he offered to watch it. She was appreciative. They spoke with one another for about five minutes. In his June 28, 2013 videotaped statement to the police, admitted at trial to have been given voluntarily, the accused informed the interviewer that, prior to June 26, he had seen the complainant “here and there” and told Dreads he was going to ask her out. In cross-examination, the accused stated that it was only about a week after his arrest that he realized the girl he helped with her bike was the same girl he had sexual relations with at the motel even though her appearance had not changed.

29In cross-examination, S.W., when asked about the statement in her June 28 police interview, “So I went with them and they went and got their marijuana,” maintained that what she meant to say “is they had marijuana with them”.

30S.W. testified in-chief that after leaving the Cave, she walked with the accused to a nearby liquor store. She felt “really high” but appeared “normal”. The accused purchased Crown Royal liquor. In her in-chief testimony, S.W. stated that she could not recall if she went in the store because she was under age. Exhibit #6 is a video clip of the interior of the LCBO outlet from June 26, 2013. In this video, at 6:23 p.m., S.W. and the accused can be seen walking in the store and at the check-out counter. In cross-examination, S.W. stated that at this time she was smiling. She thought the accused was good looking. There was no flirting or discussion of sex.

31The accused testified that S.W. told him that she was aged 18 when he asked her age. As they walked in the LCBO, S.W. appeared normal. He purchased a bottle of Crown Royal for $60.00 – he is unsure whether this was a 1.75 litre bottle. In the store, he and S.W. were flirting and giving each other compliments. Their conversation was friendly and casual. At one point, he said, “Given any opportunity, I would gladly have sex with you” to which S.W. replied, “I might have to let you”. He was only speaking “jokingly” – he had no plan to have sex with S.W.

32On S.W.’s account, they next went to a Rabba market across from the liquor store to buy pop. In her view, while she was “very high”, she appeared normal. The accused bought bottles of Pepsi and Coca Cola.

33In his testimony, the accused agreed that he bought two large bottles of Coca Cola at Rabba. He offered to buy dinner for S.W. but she was not hungry. According to the accused, “[m]y plan was to basically have a fun night, take a girl out and show her a good time”. After Rabba, on the accused’s evidence, he bought 3.5 g of marijuana for $40.00. He discussed with S.W. where they might go drinking, for example, at the park. He knew S.W. could not be served in a licenced establishment because she was not 19 years of age. When he “mentioned” his hotel room, S.W. agreed and they travelled by bus to the Motel 6.

34S.W. recalled taking a bus ride with the accused to the Motel 6 in Brampton. She could not recall what discussion they had on the bus. According to the complainant, they stopped at some point at a gas station near the motel for the accused to purchase some cigarettes and some zigzag papers to roll with “the weed”. On the subject of going to the motel, in cross-examination, S.W. stated: “I went there to drink and smoke pot” – not to have sex.

35The accused testified that there was no stop to buy zigzag papers as he did not smoke joints – he used a bong, pipe or vaporizer.

36Asked in cross-examination why she did not use her cellphone to call her mother to tell her she was going to the motel, S.W. responded that it never crossed her mind – she did not need to hear “come home” and that she should not do that or to end up “grounded”.

The Night at Motel 6

37On S.W.’s evidence, they entered the motel through the front door and proceeded to the accused’s room on the first floor. She understood that the accused and his friend were staying there. The accused said that Dreads would be coming “later on”. In cross-examination, S.W. accepted that she and the accused may have smoked cigarettes. She had her own cigarettes given to her by her mother in sandwich bags after they were purchased “at the reserve”. Once in the room, the accused offered her a drink. The accused drank as well. They talked but she does not now recall the entire conversation as they sat on separate beds. She was “really high”. In her in-chief testimony, S.W. stated that the accused rolled a joint and they smoked it and testified that she may have smoked from a bong but she was unsure. Under cross-examination, S.W. stated that she had two joints and a bong hit or “popper”. In her June 28, 2013 statement, S.W. told the police that she only had one joint.

38In her in-chief testimony, S.W. gave this evidence:

Q. How many drinks did you have?

A. Well my limit then was like three, maybe three, no, two, but I drank more than that … I drank more than I’m supposed to … uhm, I don’t remember the number but I think the number I could give you is probably, like five drinks, it could have been more.

Q. When you say you drank more than you’re supposed to, what do you mean by that?

A. When you’re on medication, you’re not supposed to drink at all, and I knew I have a limit, but I went over my limit ‘cause I wanted to have fun and when I’m over my limit, I guess it’s like I’m not all there in my head, like if I go over my limit, especially being on medication and smoking marijuana, I … start to hallucinate and, uhm, I’m just like not all there, and I’m not supposed to be drinking or smoking … when I’m on that medication because it would kill me so I guess that’s why I reacted the way I did. I just remembered I felt like I couldn’t get up because I was so intoxicated …

39In cross-examination, S.W. stated that she may have consumed five or six drinks.

40According to S.W., her alcohol drinks came only from a Crown Royal bottle. The drinks she consumed were mixed drinks but with more alcohol than pop (“I’m pretty sure”). The drinks were “pretty strong”. Asked in-chief if she had consumed alcohol prior to June 26, 2013, S.W. described the two times she had done so – a cooler on her fifteenth birthday and, on another occasion, a beer she had shared with her sister. In S.W.’s words, “I didn’t really like alcohol”.

41In cross-examination, S.W. claimed to have been drunk at some point with a friend prior to June 2013. At various times she had been drinking with her best friend. Also in questioning by Mr. Genesee, S.W. stated that when she drank, “I was always supervised by my mother to be sure” that she did not drink too much.

42Asked in-chief what medication she was taking in 2013, S.W. stated that while she was unsure, her mother could provide the names. According to S.W., her mother made sure that she took her medication on the morning of June 26, 2013. She did not have medication with her when she went out with her mother on this date.

43To the accused’s recall, he and S.W. arrived at Motel 6 and went through the front lobby at 6:30 to 7:00 p.m. to Room 124. He let Ziggy Marlee out through the unit’s window and subsequently back in by the same means. Sitting on separate beds, they smoked cigarettes and talked about bands and tattoos. S.W. never spoke of being on medication. At some point, S.W. said that she was jealous of her sister who got to have all the fun while she never did.

44The accused testified that there was an empty liquor bottle in the room which had been entirely consumed by a couple of friends two days earlier.

45On the accused’s evidence, on June 26, “[w]e were there to drink”. He was “free pouring” from the Crown Royal bottle trying to pour “a proper 1 oz shot” although the pours may have been less or more, but no more than 1 ½ ounces. In the cups, the drinks were three quarters Coca Cola mix.

46According to the accused, he only drank two alcohol drinks. S.W. drank one and spilled her second. He was “sober” and S.W. did not appear intoxicated.

47The accused testified, after this drinking, he said, “Oh yeah, I have some marijuana”. There were five or six glass pipes in the room, a couple of steel pipes, and two or three bongs. He packed a glass pipe with marijuana and took a “large inhale” before passing the pipe to S.W. She took an inhale and passed it back. S.W. did not smoke from a bong. This was the only marijuana he saw her consume. She appeared normal. As far as the accused knew, S.W. had no marijuana of her own. In the accused’s view, S.W. was “a giddy stoner” – giggly, happy and excited.

48S.W. testified that, not feeling “so good” at a point, she laid on the bed. She did not ask the accused if she could get under the covers. She felt “a little tired” and then, at a point, she recalls her clothes being removed – “I said ‘no’… ‘no thank you … stop’”, but the accused continued as though he had not heard her. Her pants were removed first and then her underwear. She was too intoxicated to scream.

49S.W. testified that at this point, when no one had showed up, and her clothes were being removed, she realized that there was no party.

50On S.W.’s evidence, the accused, without her consent, put his penis in her vagina as she lay on her back on the bed. She was then toward the end of her menstrual cycle. S.W. is uncertain how long the intercourse lasted but it felt long to her, like it wasn’t going to end. She felt scared. The accused ejaculated on her stomach. She was too drunk to get up. S.W. testified that the accused flipped her over, immediately covered her mouth, and began anal intercourse which lasted probably five minutes. It really hurt. In her evidence, the complainant volunteered that she had never had intercourse there before. The accused ejaculated in her anus. The accused said nothing during these events.

51On S.W.’s in-chief evidence, after a little bit, the accused “did the same thing again pretty much and then it got to the point that I passed out or fainted”. This was initially described by the complainant as anal intercourse. When Crown counsel returned to the subject of what sequence of events S.W. recalled, this evidence was given:

Q. [S.W.], I just want to be sure I understand the number of times you were raped as you describe it. Are you able to put a number to it?

A. Well the only part I know is like the three times ‘cause there was the first time he stuck it in my vagina, and there was my butt, and I remember being flipped over again and him about to stick it in my vagina again and that’s when I passed out …

52The complainant is unsure whether “he did more” after she passed out.

53Asked in-chief whether she recalled any other sexual activity, S.W. stated that she thought it was her “mouth too” because she “remembered tasting semen” in her mouth. The witness had no recall as to how semen came to be in her mouth.

54At trial, S.W. was unable to estimate the duration of the sexual assault she described – it felt like it lasted a long time. The accused did not threaten her at any point.

55The accused testified that S.W. asked him if she could lay down on the bed. He responded, “Make yourself comfortable”. He continued to lay on Poole’s bed. The TV was on the Much Music channel. At a point, S.A. invited him “to lie down with her”. He did so, lying on his left side. S.W. then asked him a question about her black tank top – “… she asked me if I mind if she takes her shirt off and I said, by all means … whatever makes you comfortable”. After S.W. removed her top, she got under the bed covers. As she took off her top, S.W. commented that her bra was making her uncomfortable – it was making her itchy – she scratched under her right arm. At this point, “Basically she asked me if I mind if she takes her bra off” – he responded, “if it makes you more comfortable”. S.W. then removed her bra and threw it on the floor.

56The accused informed the court that, soon after, S.W. asked him why he was not under the covers as well. He was attracted to S.W. In his words, “so I jumped under the covers”. S.W. appeared normal. They “conversed a little bit”. According to the accused, S.W. turned her back to him and grabbed his right arm and pulled it over her “as to cuddle with her or … spoon with her”. Then, she turned back toward him and began to kiss him which “led to foreplay touching, feeling, groping and at all” for 30 to 45 minutes. At some point when he was on his back with S.W. on top of him, his shirt “got taken off” by her.

57In his in-chief testimony, the accused stated that while they were “[r]olling around” S.W. told him that she really wanted “to make love to [him]” but that she was on her period leading to him suggesting that, “Well we can always jump in the shower”. In cross-examination, the accused was referred to this passage in his June 28, 2013 videotaped statement to the police:

And I’m-, just kind of caress her arm a little bit, kiss her on the shoulder. She rolls over, starts making out with me, clawing at me, tearing my clothes off, she like gets my shirt off and everything. And then, uh, we were rolling around a bit and then she’s like, do you wanna go have sex in the shower? I says, sure.

58Confronted with the difference as to who instigated the discussion about sex in the shower, the accused responded that:

(1) he was distraught and shocked about being charged when he spoke to the police

(2) his memory was better at trial

(3) “I would say today’s statement is probably true”.

59On the accused’s evidence, S.W. agreed to sex in the shower. They fully disrobed in the bathroom. They kissed. Then, bent over and standing behind S.W. in the running shower, the accused had consensual vaginal intercourse with her. At a point, S.W. went down on her knees hanging over the side of the tub. Sexual intercourse from behind continued with S.W. “saying harder” … “she kept asking me to go harder and faster”. He then said that if that was what she wanted, they would have to return to the bed. In cross-examination, the accused was referred to his police statement version:

So we go jump in the shower, we’re having sex in the shower. And I’m like, shower’s no fun anymore, let’s go jump back in the bed. So we go jump back in the bed.

60The accused then testified that the two accounts were “somewhat similar but different yes”.

61The accused testified that he and S.W. dried themselves off and returned to his bed where sexual intercourse continued with S.W. on top of him. He ejaculated in her vagina, not on her stomach. No condom was used. In re-examination, the accused stated that at some point S.W. told him that while she used to be “on birth control”, she had “switched to the needle”.

62They then smoked cigarettes and he alone smoked a little bit of marijuana. As they lay in bed “cuddling”, sometime between 9:00 to 10:00 p.m.; this conversation occurred with the accused questioning S.W.:

Q. Have you ever tired giving somebody a blow job?

A. No.

Q. Do you want to try?

A. Okay.

63According to the accused, as he lay on his back on the bed, with S.W. on her knees bent over him, she performed fellatio for two to three minutes. He did not ejaculate. He then told S.W. she was “pretty good at that” causing her to smile and blush.

64In his in-chief evidence, the accused informed the court that he and S.W. then “made love” in “a spooning position” with her back to him. During this half-hour of vaginal intercourse, he did not ejaculate. When he asked S.W. if “she had ever tried anal sex”, she replied, “No” but that “she’s willing to give it a go”. He then said to S.W. that all she had to do was say ‘no’ or ‘stop’, that she was being hurt, and he would stop. He spit on his hand to create lubricant. When he “tried to enter” S.W.’s anus, she said it hurt and he immediately stopped.

65Under cross-examination, the accused was referred to the version of events he told the police relating to anal intercourse:

… she had mentioned that she liked anal sex, so I was like, you know-, actually she mentioned she liked anal sex and then I was lying beside her and we had-, weren’t doing anything, right? And she was like, if I asked you to stop, would you? And I said, stop what? She says, anal. I says, yeah, of course, if you said n- stop, that hurts, I’d stop immediately. She’s like okay, well, do you wanna try it out? I says, yeah, okay. So I put a little bit of lube on her bum from my mouth, right, and I started to go into her bum and she said, ow, that hurts and I stopped immediately. And I was like, okay, whatever and then she grabbed my penis and she stuck it back in her vagina and we continued to have sex.

66Asked which account was accurate as to who suggested anal sex, the accused testified: “The one that I would say would be true would be today’s statement”.

67Continuing his account in his evidence in-chief, the accused gave this evidence:

Q. And then what did the two of you do after that, after you stopped, she said it hurt, what happened next sexually?

A. She got on top of me.

68In cross-examination, the accused initially appeared to agree with this sequence. He then stated that after the aborted anal intercourse, “spooning” vaginal intercourse continued. Pressed on the difference, the accused stated that, after spooning sex, as they lay on their sides, S.W. “climbed on top of me to finish off”.

69On the accused’s evidence, he again ejaculated. When S.W. asked him if he would ever date a girl like her, he said, “Yes”.

70The accused testified that S.W. consented to all their sexual activity – “It was consensual one hundred percent”. In his in-chief testimony, the accused gave this evidence:

Q. How enthusiastic was she during the sexual activities?

A. Quite.

71The accused testified that S.W. at no point said “no”. She never passed out. She was not hallucinating and appeared to have no difficulty moving. According to the accused, “We joked around a lot. We had a lot of fun”.

72In cross-examination, when it was suggested to S.W. that she consented to having sex with the accused, S.W. stated:

… I’m sorry … but no … If I want to have sex with somebody, I would say ‘yes’, but if somebody says ‘no’, it’s ‘no’, it’s ‘no’, so it’s ‘no’ … no I did not.

I told him “no”.

… three or four times, I said ‘no’ and it got to the point, I just stopped saying ‘no’ because I knew he wasn’t going to stop, so I let him do what he needed to do.

When somebody’s drunk, they can’t fight back, so what was I to do, keep on screaming ‘no’?

I remember saying ‘no’ … three to four times.

The Next Morning

73In cross-examination, S.W. was referred to a passage from her June 28, 2013 video statement to the police suggesting that she again had sexual relations with the accused after waking up on the morning of June 27:

Q. How did it, how did it, how did it happen that you had sex with him again?

A. Pretty much he just, pretty much he just did it. He did-, my clothes were already off me. He just did it to me.

Q. Okay.

A. And his friend was still sleeping at the time, actually.

The complainant testified that she cannot now recall if the accused had sex with her in the morning – “he probably did”.

74The accused testified that when Dreads returned to the motel room at about 11:30 p.m., he and S.W. were in bed cuddling. Two large pizzas were ordered and delivered between 12:45 and 1:00 a.m. and pizza was eaten by S.W., Dreads, Ziggy and him.

75In his in-chief evidence, the accused stated that he and S.W. then cuddled and went to sleep. He was asked in-chief about the last sexual activity with S.W.:

Q. … do you have an accurate estimate of when the last sexual activity occurred between you and [S.W.]?

A. That point in time would have been roughly half an hour before Cam showed up.

76This remained the accused’s position early in cross-examination:

Q. … the two of you last had any form of sexual activity half an hour before your roommate Cameron Poole, returned, is that right?

A. Yes.

77Crown counsel pressed the accused further on this subject, in particular given contrary statements he had made to the police in his June 28, 2013 statement. The cross-examination in this regard began in this way:

Q. And then did I understand you correctly that once Mr. Poole returns to the room, there’s no further sexual activity between you and [S.W.]?

A. There could have been.

Q. Okay. Are you able to remember any?

A. Not at this moment in time, no.

78The accused was then referred to an excerpt of his videotaped statement:

And, uh, my roommate and I smoked some marijuana. He then lied down in his bed. I lied down with [S.W.] again. We cuddled all night. Um, we had sex one more time after my roommate fell asleep.

79Crown counsel continued her questioning:

Q. Okay. So did you and [S.W.] have sex one more time after your roommate fell asleep?

A. No.

Q. Okay. So that’s a lie when you tell the police that.

A. That was the best to my recollection at that point in time. I don’t know if that’s after I punched myself in the head a couple of times or before I punched myself in the head a couple of times. I was distraught in the video. I was in a state of shock …

Q. So do I understand you then, sir, to say that once Mr. Poole arrives in the room you and [S.W.] don’t have any further sexual intercourse or activity?

A. That’s correct.

80Ms. Prihar returned to the accused’s video statement in which he stated:

A. She asked for it. She-, my friend was in the room, he put his headphones in because she was screaming so loud and she was asking for it harder. She grabbed my hands. She make me touch her. She kissed me. I would-, I did not kiss her.

Q. So …

A. She kissed me. It wasn’t …

Q. So in your opinion, she wasn’t …

A. In my opinion, she was fully knowledgeable of what was happening in that situation and if I had have thought otherwise, I would have probably jumped in my roommate’s bed and went to sleep for the night or called her a cab to take her home.

81Asked for an explanation for the differences between this statement and his trial testimony, the accused informed the court that he was distraught and shocked when speaking to the police. The witness continued:

A. I recall saying that but I was trying to get a point across.

Q. When you tell Officer Parkins that your friend is in the room and he put his headphones in because she was screaming so loud and she was asking for it harder, it’s a very specific detail would you agree with me?

A. No, not really.

Q. Okay. So it’s different for example than saying she was screaming really loudly, would you agree with that?

A. Yeah.

Q. Okay. And so in an effort as I understood you to say to get your point across that you and [S.W.] had only engaged in consensual sexual activity you fabricated a detail of what happened that night, is that right?

A. Yes.

Q. Okay. Is that the only detail you fabricated in your statement to police?

A. Yes.

82Crown counsel continued to press the accused for his present recall of the circumstances of his last sexual relations with S.W. by reference to these answers in questioning by the police:

A. Um, pretty much in the hotel room lying in bed, uh, my roommate showed up about eleven o’clock, maybe 11:30, twelve o’clock, he showed up.

Q. Mm-hmm.

A. Um, yeah, he lied there with his headphones in. I wasn’t sure if he was asleep or awake, but I know we had intercourse with him in the room. Um, we cuddled, we went to sleep, we woke up. Um, pretty much she turned to me, she asked me to have sex with her again.

Q. What time was that?

A. Uh, that would have been about 9:30, ten o’clock.

Q. In the morning by them?

A. Yeah…

… it was-, like it was just one of those nights, man. You know, it was total passion, heat of the moment, dire attraction.

83Questioned as to the truthfulness of these representations to the police, the accused gave this evidence:

Q. And so you’d agree with me that once again you tell the police that you and [S.W.] had intercourse with your roommate in the room?

A. Yes.

Q. And again, that’s a lie?

A. To my recollection, yes.

Q. In that passage I just read to you you also say, “We cuddled, we went to sleep, we woke up. Pretty much she turned to me she asked me to have sex with her again.” Is that also a lie?

A. To my recollection, yes.

84Crown counsel subsequently returned to the same subject:

Q. Okay. And so during the period of time where you’re both awake, is your evidence then that the two of you do not have sexual intercourse of any kind in the morning?

A. Yes.

85This response led to further reference to these statements made by the accused in his police statement:

A. What I would call sex is how many times my penis actually entered her vagina between orgasms, right? Now, I only g-, had ones orgasm last night and I have one orgasm this morning. The rest of it was foreplay and fooling around and giving her pleasure.

Q. Did you cum in her mouth?

A. No.

Q. So your DNA won’t be found in her mouth?

A. Uh, pre-cum maybe, but I did not have-, I did not shoot a load in her mouth, no.

Q. Are you certain about that?

A. Yes.

Q. So pre-cum, why would you say that?

A. Well, she did arouse me while sucking on my penis, so yes, I would say with arousal comes pre-cum. So yes pre-cum would come out. I did not full out orgasm in her mouth. I orgasmed inside of her twice, once last night and once this morning.

Asked to explain, in light of these statements, whether sexual relations occurred in the morning, the accused gave this evidence:

Q. You’d agree with me that what you tell the police is that you had an orgasm in the morning, right?

A. Define morning.

Q. Your evidence in the statement you give to police is, “I had one orgasm last night, last night and I had one orgasm this morning.”

A. Define morning. Morning to me would be 6:00 a.m. or later.

Q. Okay.

A. It could be after midnight I’m referring to at that point in time.

Q. Is it your evidence that’s what you are referring to?

A. No.

Q. Okay. So when you said that you had an orgasm in the morning were you being truthful?

A. Doubtfully. I was in a state of shock. I was telling the officer basically anything.

Q. Okay.

A. I was trying to remember the night the best I could, but at the same time there could have been a lot of BS in there.

86Ms. Prihar returned to the last passage from the accused’s police statement:

Q. Were, were you guys like falling asleep and waking up and fooling around like in between consciousness would you say?

A. No.

Q. You guys were conscious the whole time?

A. Yes.

Q. You guys never slept in between or passed out?

A. Only between 3:30 in the morning when we finally went to sleep and it would have been 8:00 in the morning when I woke up and she would have woke up about 9:00, yeah about, at about 9:00, 9:30. I was still cuddling with her and she turned to me, told me she was very horny and wanted me to have sex with her and then...

Q. Are those the words she used?

A. Yes. She was like, I’m really horny. I’m really horny. Fuck me. Were her exact words. I said, Okay, started kissing her a little bit of foreplay, had sex this

morning. She – we finished having sex. She still grinded on me, we’re cuddling, spooning, she still grinding my crotch going ‘I’m really horny why won’t it stop? I’m really horny, I’m really horny’ and I’m like, ‘I can’t take anymore, I’m sorry, you fucked me raw. Like I’m sore. I’m sorry I can’t take anymore.’”

Q. Did you tell her that you fucked her hard or anything like that or?

A. No, all through the night she was screaming, ‘Fuck me harder’ all through the night. I never said I fucked you hard, I never said I’m going to fuck you hard. I – she looked at me and said, ‘This is the best sex ever.’ I don’t talk dirty when I

have sex. I don’t say anything, right, I’m quiet. So pretty much every word that came out of her mouth was, ‘Yes, harder, harder, yes, yes, yes please, harder, harder, harder, yes, ah oh my God I’m going to cum, I’ve never had an orgasm before, that was my first orgasm, that was amazing, I love you, will you go out with me, yes, harder, harder, yes, yes, harder, harder.’ Is it coming together for you ‘cause I mean I never want to have sex again. Like I’ll never have another one night stand, like this is....”

Q. You said you got to know her pretty well on the ride, you know, between Tim Hortons and, and the bus ride to a – to the hotel, is that fair to say?

A. We, we had a half an hour conversation, like how well would you get to know somebody in a half an hour?

87Questioned in cross-examination whether this was a true account, the accused gave this evidence:

Q. Okay. And so you give a very specific account to the officer of what occurs in the morning in relation to another instance where you and [S.W.] have sex, you’d agree with that?

A. Yes.

Q. Is any of it true?

A. I’m going to have to say yes it could be, it could be fabrication, it could be true, I don’t recall.

Q. Okay. Is it that you don’t remember what happened in the morning?

A. Very well so.

Q. I’m sorry, what was your answer?

A. Very well so it could be. I don’t remember, I don’t recall right now.

88Given the varying accounts provided the court, Mr. Genesee attempted clarification in re-examination:

Q. Okay. And so was – so now under oath do you know whether you had sex one more time after your roommate fell asleep but before the morning, before you all got up in the morning?

A. I do believe so.

Q. You do believe there was sex one more time after you fell asleep?

A. Yes.

Q. Okay. And now at this point in time what is your best recollection with respect to this issue of the headphones and, and screaming – her – she was screaming out loud and wanting it to be harder. What, what is your recollection at this time?

A. The time that I recall her screaming harder and all that basically happened in the shower before Cameron ever showed up. When Cameron was there it was silent. We were in a spooning position cuddled up together. TV was on.

Q. Okay.

A. Cameron just said he put his headphones in as so he could not hear anything.

Q. …did you have intercourse – what’s your best recall at this point in time with respect to whether you had intercourse with him in the room either asleep or not asleep or with his headphones on? And if you don’t know say so I don’t want you guessing but if you....

A. As far as I can remember, yes.

Q. Yes what?

A. Yes we had intercourse while Cameron was in the room.

Q. Okay. And....

A. That would have been the morning sex I guess.

Q. And that – yes, you went on to say, “That would have been about 10:30, 10 o’clock, 9:30, 10 o’clock,” correct? He asked you next what time was that and you said it would have been 10:30, 9:30, 10 o’clock. What that accurate or not accurate?

A. I don’t think that was accurate.

89S.W. testified that she remembered waking up the next morning. She felt scared and unsure what to do. Dreads was in the other bed asleep. She was not “all there in her head”. She had no idea when Dreads came to the room. She then hallucinated that the accused was right beside her although he was not. She then hallucinated that there was an animal there trying to come at her. When she then closed and reopened her eyes the image of the dog was gone. She was “very sore” – her whole body ached and was in pain – her back hurt – her vagina and her butt hurt “really bad”.

90When Dreads briefly awoke, S.W. asked him where the accused was. He said that he had gone out “for a second … he’ll be back soon”. Dreads went back to sleep. S.W. testified that she did not tell Dreads what had happened thinking that he would not believe her. She did not know whether the accused was outside the door. The accused entered the room and said “Good morning”. He said he had something to do. He gave her some money for the bus. S.W. cannot recall whether the accused returned to the room with anything. S.W. knew nothing about a text message received by Dreads from a girl asking if anyone had seen her – she was not worried that her mother was looking for her. The accused acted very nicely toward her which shocked her. She got dressed, without her bra, and the accused walked her to the bus. He asked her if she had had fun – “and I was like, ‘I don’t know’”.

91The accused testified that when he awoke, both S.W. and Dreads were asleep. He left for an hour to go to a nearby Tim Hortons returning with coffees for himself and Dreads. He woke Dreads up and gave him his coffee. After S.W. awoke, he had a shower.

92On the accused’s evidence, when he came out of the shower, Dreads passed him the cellphone they shared – a text message had come in from a “mutual friend” whose identity he could not recall at trial, which the accused then read aloud to S.W. asking if they “had Shannon ‘cause her family was worried and looking for her”. When he then said, “Maybe you better go home”, S.W. replied, “Who cares?”, subsequently amended by the accused in cross-examination to, “I don’t give a fuck”. He suggested that she probably should go home and deal with what she had to deal with and they could go to dinner later. The accused informed the court that S.W. looked worried after a few minutes. S.W. had asked earlier about going out for breakfast and seemed disappointed about not going for breakfast. S.W. dressed, leaving her bra and saying, “It’s broke, I don’t want it” – it “irritated” her.

93In her in-chief testimony, S.W. stated that they walked in the motel hallway and out the back door to get to the bus stop. The accused was joking with her. She smiled back, perhaps because she was in shock. She did not know what to do or how to react. She was terrified that if she made the wrong move, he would hurt her.

94In cross-examination, S.W. maintained that she was never at the front of the motel with the accused. When she was shown a 1-minute video clip (Exhibit #7) of June 27, 2013 at 11:31 a.m. from a surveillance camera in the Motel 6 front lobby, S.W. eventually identified herself upon recognition of her purse. She agreed that she had a slice of pizza. S.W. again testified that she was not then all there in her head and had no recall of this event (“I don’t even remember doing this … I don’t remember this at all”).

95S.W. informed the court in cross-examination that she was scared, she had been raped, and was unsure if a reaction on her part would provoke the accused to again hurt her. She did not tell persons in the motel lobby what had happened to her because they were not her parents or the police.

96The accused testified that he and S.W. left Room 124 and walked to the motel front lobby. S.W. had no money. He attempted unsuccessfully to get the correct change for bus fare for S.W. from the on-duty clerk/cashier. He then briefly returned to the room to get money. While testifying, the accused identified himself and S.W. in the Exhibit #7 video. On the accused’s evidence, he walked S.W. to the bus stop.

97There was a wait for the bus. According to the accused, S.W. appeared normal and “basically quiet”. She was not groggy or incoherent. She did not say much beyond saying that she had a good night and a good morning. S.W.’s hair was not combed and she looked like she had just gotten out of bed. She looked “a little hung-over”. When questioned in cross-examination as to whether the accused’s characterization of S.W. as “hung-over” was consistent with her alcohol intake the night before, the accused claimed that the expression could refer to being hung-over from “marijuana … too much drug intake … too much sleep”.

98The accused informed the court that, “right before” S.W. got on the bus, he kissed her and wrote his phone number on a bus transfer before giving it to her and asking her to call him so that they could go to dinner.

99Melanie Lee testified as a defence witness at trial. In June 2013, and since that time, Ms. Lee has been employed at the Motel 6 in Brampton. The witness was first interviewed by the PRPS on June 27, 2013 in relation to this case. She gave a statement and provided the police a motel surveillance tape from the June 27 date showing part of the front lobby area (Exhibit #7).

100In the witness box, Ms. Lee watched a brief clip of Exhibit #7, depicting the motel lobby area at 11:31 a.m. on June 27, 2013. Ms. Lee was the sole clerk at the front desk. The witness recalled seeing S.W. in the lobby earlier that morning, between 8:00 and 9:00 a.m. When S.W. was walking around the building at this time, Ms. Lee did not speak with her. Ms. Lee had also seen the accused going in and out of the building and had seen “him and her around the building”.

101In the video exhibit, she observed the accused who she recalled had been staying at the motel with a friend for about a month prior to this date. He was in Room 124 in the motel hallway closest to the front desk. She had previously casually spoken with the accused. He was not a problem customer.

102According to Ms. Lee, the lobby scene at one point shows the accused and S.W. in the front desk area. S.W. had a hoodie up but not over her face. She told Ms. Lee that it had been her first time in a hotel and that she liked the rooms. S.W. smiled, laughed and joked with her. There was no sign of alcohol or drug influence – S.W. seemed “absolutely fine”, without signs of any distress, and to be having a good time.

103In watching the video, Ms. Lee identified the point at which the accused left the front desk area and proceeded out of sight to the area of some vending machines at the back of the lobby.

104Ms. Lee further recalled that the accused and S.W. left together. The witness testified that the nearest bus top is accessible through the rear entrance of the motel.

105Asked in-chief if she had a cellphone on June 26, 2013, S.W. was unable to recall.

106S.W. testified that on the bus ride she had hallucinated that there were ants in her hair. She wanted to get home and tell her mom what had happened and to be held and comforted by her.

107In her in-chief evidence, S.W. stated that she wanted to get home and tell her mother what had happened. After the bus ride to Bramalea City Centre, she walked outside the mall. She again hallucinated “pretty bad” – the reflection of her face in the bus terminal doors looked deformed, and the sidewalk looked really weird, and on looking at her fingernails she imagined that her hands were shaking really fast. She also heard voice in her head but there was no one there.

108In her in-chief testimony, S.W. stated that she also met Theresa on “the pathway” at this time, who she later learned was a friend of the accused. S.W. reported this conversation with Theresa:

Q. Are you okay?

A. Uh, I just got raped.

Q. Oh my god, are you okay?

A. I don’t know.

Q. Are you sure you were raped?

A. Yah, I’m pretty sure I was raped.

109S.W. testified that she then walked past Tim Hortons to where a pathway was where the police found her. To S.W.’s recall, because of her hallucinations, she was nearly struck by a car on Bramalea Road.

The Missing Person Search

110When S.W. did not return home on June 26, 2013, T.W. contacted the police after an hour’s wait. Because S.W. was enrolled in the Vulnerability Program, a search for S.W. could be initiated with a saving of time and questioning.

111S.W. testified that she told the police who found her that she did not feel well. She as “not all there” in her head. She sat in the rear of a police cruiser while a male officer spoke with her. S.W. testified that she felt disoriented and that this lasted “a pretty long time” through to when she returned home where she was still “not all there”.

112According to S.W., the police found marijuana in her purse. She did not put it there. In his testimony, the accused stated that he believes S.W. stole his marijuana before she left the motel. Asked in-chief about a Brampton Transit bus transfer in her purse with the accused’s name and phone number, S.W. stated that she had no idea how the item came to be in her purse.

113In the morning of June 27, 2013, PRPS Constable Patricia Shearer attended a briefing relating to S.W. as a missing person. She tasked various officers to attend certain locations in the area of the Bramalea City Centre in an effort to locate S.W.

114PRPS Constable David Dawe testified that he was conducting uniformed patrol on June 27, 2013. He had been tasked with assisting in locating a missing 17-year-old, S.W. The officer checked a number of locations without success until about 12:30 p.m. when he observed S.W. walking on a path south of the Bramalea City Centre.

115Const. Dawe testified that he was the second officer on scene as Const. Flores had arrived as well in a separate cruiser. S.W. was wearing a black hoodie. He only observed the complainant briefly. He did not deal with S.W. electing to have Flores, a female officer, speak directly with S.W.

116PRPS Constable Nathalie Flores was called as a prosecution witness. The officer had misplaced her original notebook. At some point in 2015, she prepared a ‘will say’ document from “independent recall” and from retrieving date and times from her unit history or CAD. The will say is undated. A reference therein to ‘2015’ is in error as the correct reference is ‘2013’. Const. Flores claimed, here at trial, to have an independent recall of having dealt with S.W.

117The witness was permitted to testify and to use her will say statement to refresh memory as needed with the weight to be afforded her evidence to be assessed having regard to her presentation and reliance on a later-created document, not original notes.

118According to Const. Flores, just prior to Const. Dawe’s arrival, she observed S.W. walking. She pulled her cruiser to a stop and began a conversation with S.W. To the witness’ recall, she was within 3 to 5 feet of the complainant for 5 to 10 minutes until an ambulance arrived. She observed no injuries on the complainant. Const. Flores informed the court that S.W. was wearing a tank top and a hoodie.

119The witness was unable to recall whether S.W. asked for an ambulance and also had no recall as to which officer placed the call for the ambulance.

120Having consulted her will say, Constable Flores testified that the tank top had a ripped strap. Shown S.W.’s tank top taken from a police exhibit bag, the witness was unable to see any defect in the garment.

121In her in-chief testimony, Const. Flores explained the reference in her will say, “I observed her to be dazed and confused”, to relate to how S.W. answered questions in their brief conversation. Const. Flores could not recall whether S.W. asked to see her mother.

122When Const. Shearer was advised by radio that S.W. had been found, the officer went to the pathway in Clark Park at 12:34 where S.W. had been located by Consts. Dawe and Flores.

123According to Const. Shearer, S.W., who was seated in the rear of a cruiser, was wearing jeans, a black tank top, a black hoodie with some patterning and no bra. In the officer’s view, S.W. appeared disoriented and to have a poor memory when questioned including being unable to answer some questions. In the officer’s view, S.W. seemed light-headed, very soft spoken, upset and appearing dishevelled as though she had just gotten out of bed.

124Const. Shearer testified that while S.W. did not complain of being sexually assaulted by the accused, she inferred that this had occurred based on her experience from what information she elicited from S.W. S.W. repeatedly stated that her vagina and bum hurt.

125Const. Shearer testified that S.W.’s demeanour did not change during the ambulance ride to the Mississauga General Hospital or thereafter during the officer’s time with S.W. up to 2:45 p.m. Const. Shearer did not observe S.W. to be injured.

126Const. Shearer examined the contents of S.W.’s purse looking for identification. Among the contents were two Brampton Transit bus transfer from June 26 and 27, 2013 (Exhibit #10) – written on one of the transfers was “647 994 9420 Dirt”. In cross-examination, S.W. agreed that while the police also discovered some marijuana in her purse, she did not put it there – and she had no marijuana of her own at Motel 6.

127On Const. Shearer’s evidence, S.W. related to her that she had not been interested when the accused sat down beside her at Tim Hortons. When S.W. left there and walked toward Clark Park, the accused and Dreads followed her from a distance, she blacked out and remembered waking up in a hotel room with no shirt on and her underwear below her knees, with the accused in bed beside her. Dreads was in the room’s other bed without a shirt.

128Under cross-examination, when it was suggested to S.W. that she had had an evening of “great sex”, then fell asleep by 1:00 a.m., and the next morning fabricated a rape story to avoid being in trouble, the complainant disagreed:

Q. I suggest to you what really happened here was that you had great sex with him, consensual sex, that you spent the night and wanted to spend the night … then when you woke up the next day, you realized you were going to be in deep trouble with [your] mother and so the perfect out was to scream “rape” because that would bring sympathy for you, isn’t that what really happened here?

A. No, that’s not at all, you’re completely wrong.

Arrest of the Accused

129The accused testified that after S.W. left on the bus, he returned to Room 124 and began to drink. In his in-chief testimony, the accused stated that this was from noon to about 4:00 p.m. In cross-examination, the timing was described as until 1:00 or 2:00 or “possibly later”. He was drinking Crown Royal mixed with Coca Cola – free pouring “roughly about doubles … trying to pour two shots”. He had four or five such drinks, described in his in-chief evidence as “still trying to have a good time”. In cross-examination, the accused maintained that it was, “[t]o basically get myself drunk that day … ‘[c]ause I had nothing better to do so”.

130According to the accused, he and Dreads left the motel during the afternoon so that he could get a tattoo. To his recall, he was subsequently arrested at 12:30 to 1:00 a.m. on June 28, 2013 on his return to the motel. It was an agreed fact at trial that the arrest occurred at 12:11 a.m.

131The accused described himself as in a state of shock on being arrested for sexual assault. He voluntarily provided a DNA sample. On his evidence, the police interviewer claimed that he had had sex with a “mentally retarded” female. During the interview, the accused wrote a letter of apology addressed to S.W.’s parents stating:

My name is Brad Walsom. I met your daughter [S.W.] the other day some things happened I’m sure you know. I would like to send you my deepest apologies for any harm I may have caused if I hurt anyone in your family I am truley sorry. I not sure what else I can say. I have a daughter of my own I can’t imagine. The anger you have for me and again I’m so sorry it happened if I could turn back time I would. I should have done alot of things differently in my life but this is the thing I regrete the most I’m sorry that it happens at all. But I swear this was unintentional and Will Never! Happen again. If I go to jail when I am released I will do what ever I can to insure something like this doesn’t happen to anyone else ever again it is very important to me that you understand this was a mistake and I will never do anything like this again its also important to me that you know how sorry I am …

Words cannot explane the way I am feeling right now but if I had to choose one it would Be Ashamed!!!

Truely from the Bottom of my Heart

I’M SORRY

(emphasis of original)

132Questioned in cross-examination as to how this prior statement of apology could be consistent with his at-trial assertion of consensual sexual relations and his evidence that he had done nothing wrong, and had “no reason” to apologize to S.W., the accused responded that, while there was no reference to this in his letter, it was because the police had led him to believe that he had had sexual intercourse with someone who “had the mental capacity of an eight-year-old child and [who] was not mentally fit to give consent”.

The Motel 6 Search

133On June 28, 2013, PRPS Constable Fischer, a member of Forensic Identification Services, attended Room 124 of the Motel 6 in Brampton to assist in executing a search warrant commencing at 1:50 p.m., just over an hour and a half after the accused was arrested outside that motel room.

134Const. Fischer took photos of the interior of Room 124 (Exhibits #’s 2, 3, 4, 18) and seized a number of items including two glass cylinder bongs, two plastic cups and a red bra (Exhibit #20). The witness considered the room to be in a sloppy state. Photos depicted two pizza boxes, a marijuana pipe, two large bottles of pop (Coke, Pepsi) in the room’s mini-fridge, and two liquor bottles on top of the fridge. One of these bottles, Jim Bean Devil’s Cut, was empty. The second bottle, Crown Royal whiskey, which the constable believed may have been a 1.13 litre bottle (approx. 40 imperial fluid ounces), in his opinion remained three quarters full.

The Complainant’s Hospital Attendance

135T.W. testified that on her arrival at Chantel’s Place in the afternoon of June 27, 2013, she found her daughter to be upset, not very coherent, and appearing tired and very groggy. S.W. did not seem to “have her faculties” and was “not with it”.

136In June 2013, Ann Neary was employed as a sexual assault examination nurse at Chantel’s Place at the Trillium Health Centre in Mississauga. On June 27, 2013, Ms. Neary completed what is commonly referred to as a rape kit examination of S.W.

137In the examination, S.W.’s clothing (“worn during the assault”) was collected (t-shirt, underwear, pants, shoes). Blood was noted in S.W.’s underwear and pants. S.W. was menstruating. Oral and fingernail samples were taken. Swabs of the skin were taken of the complainant’s face, neck, abdomen and breast area. Based on information the nurse received from S.W., these areas were swabbed with Ms. Neary recording these reasons in the Forensic Evidence Form (FEF) (Exhibit #11): face (“oral sex and ejaculation”), breasts (“sucked”), neck (“kissed”), abdomen (“ejaculation”).

138Urine was collected at 8:00 p.m. and blood at 9:15 p.m. Again, based on information from S.W., Ms. Neary recorded in the FEF on the subject as to whether alcohol or drugs were used “within 24 hours prior to the assault”: “3 – 4 joints – marijuana states used X Alcohol – 6-8 drinks – Crown Soda pop”.

139Rectal and vaginal swabs were taken.

140Based on information from S.W., the FEF also recorded:

(1) that during sexual contact no condom was used

(2) “[p]rior to this assault”, oral sex was performed on the patient (within last 24 hours) and anal sex (within prior 3 days) and vaginal sex (within the prior 7 days)

(3) clothing was “worn during the assault” and the clothing “worn during the assault” was not damaged

(4) S.W. “scratch[ed] the assailant” – fingernail scrapings taken

(5) as to any “physical or mental impairment experienced prior to, during, or after the assault”: “States – Confused through night – Remembers in small bits”

(6) assailant attempted to perform cunnilingus upon S.W.

(7) the complainant’s vagina was penetrated by the assailant’s penis, mouth/tongue and finger(s)

(8) the assailant ejaculated during anal intercourse.

141Ms. Neary also completed a Physical Examination Form (PEF) (Exhibit #11) noting:

(1) areas of redness, as depicted on pp. 1-2 of the PEF, on the front and rear of S.W.’s left leg and one reddened area of tenderness on the front of the right left at the knee and areas of redness on that leg on the inner and outer aspects of the knee

(2) no injuries were noted to the front or rear of S.W.’s head

(3) although the vagina and cervix were not inspected (patient refused), no injuries were noted to the labia majora and minora, the posterior fourchette and introitus, or to the anus and rectum.

The Toxicology/Biology Evidence

142It was agreed between the parties that the reports of two Centre of Forensic Sciences (CFS) forensic scientists from the Biology section, Melinda Matte and Joanne Cox (reports respectively entered as Exhibit #’s 15 and 17), could be admitted without the authors being called to testify.

143Ms. Matte’s August 27, 2013 report concluded that:

(1) testing of the oral swab (item 2-1) taken from S.W. did not result in the detection of any male DNA

(2) the swabs of S.W.’s external genitalia, vagina and rectum disclosed a male DNA profile (no differentiation as to whether blood, saliva or semen) which did not exclude the accused as the source – “[t]he probability that a randomly selected individual unrelated to Bradly WALSOM would coincidentally share the observed DNA profile is estimated to be 1 in 99 trillion”.

144Ms. Cox’s September 11, 2013 report concluded, with respect to the swabs of S.W.’s breast, neck, face and abdomen, that the male DNA identified on these swabs, further identified as semen on the complainant’s face and abdomen, could not exclude the accused as the source based upon the same probability assessment as contained in Ms. Matte’s report.

145Inger Bugyra, a forensic toxicologist with the CFS, was qualified by the court to provide expert opinion evidence respecting the detection and analysis of alcohol and drugs in the human body including the effects of such substances on the central nervous system. The expert’s report in this case was entered as Exhibit #9.

146Ms. Bugyra testified that the urine sample taken from S.W. was subjected to a general drug screen capable of determining if any of 130 drugs were present. Drugs become pooled in the urine over time until the bladder is voided. No drugs, including alcohol, were detected in the drug screen other than carboxytetrahydrocannabinol (THC-COOH). The expert was unable to say whether the presence of THC-COOH, an inactive metabolite of THC (the major psychoactive component of marijuana), indicated that S.W. had consumed marijuana an hour, a day or two or three days before the point that her urine was collected. The effects that may occur after use of THC include mild euphoria, relaxation, altered time perception, motor incoordination and decreased ability to concentrate. The effects will vary according to a user’s prior exposure to cannabis products.

147Ms. Bugyra informed the court that trazodone is an anti-depressant medication. The drug comes in different strengths depending upon a patient’s medical prescription. This drug’s half-life, the time it takes the concentration of a drug to be reduced by 50%, is 3 to 7 hours – 15 hours after ingestion, at ordinary detection sensitivity, the drug would not be detected in the human body. There is a large variability as to the elimination of such drugs from the body.

148The expert described concerta (methylphenidate), a drug used in the treatment of attention deficit type disorders, as having a short half-life, 1 ½ to 4 hours, with extended release tablets allowing the medication to be gradually released from an ingested tablet. It would not be expected to detect traces of this drug where consumed 30 hours before bodily fluid samples were taken.

149Ms. Bugyra testified that epival (valproic acid) is a mood stabilizing and anti-epileptic agent. This drug was not screened for. It has a half-life of 8 to 16 hours and therefore traces could potentially stay in the body for days after last consumption.

150Ms. Bugyra was questioned upon the subject of the effects on the central nervous system of combinations of drugs. Alcohol and trazodone would likely have a sedative effect of drowsiness and a reduced level of consciousness (sleep to potential coma) and decreased brain function. The actual effect would be concentration-dependant. With consumption of alcohol about 12 hours after trazodone consumption, the trazodone would likely have been eliminated to a point of having no or little sedative effect.

151The addition of cannabis would not add to the depressant impact on the nervous system. Concerta mixed with alcohol would not have a sedative effect as concerta is a stimulant of the central nervous system – one might therefore feel less sleepy. If alcohol, trazodone, concerta and epival were all consumed within one day, there could be an additive sedative effect on the individual.

152No alcohol was detected in testing the blood sample taken from S.W. The expert was asked to assume that an individual, about 24 hours before her blood sample was taken, consumed 3 to 6 mixed drinks of whiskey (1 ½ oz at 40% alcohol by volume) and coca cola. Ms. Bugyra testified that with ordinary alcohol-elimination rates, it would be unlikely that alcohol would be detected in the blood on testing. The expert also noted that she would need to know the individual’s weight and precisely when the drinking began.

153The expert noted that the effects of alcohol upon a person may vary according to the individual’s tolerance for alcohol based upon prior consumption history.

154Ms. Bugyra anticipated that drinking in these amounts beginning at about 6:00 to 6:30 p.m. on June 26, 2013 would result in a zero BAC (blood alcohol content) in blood extracted at 9:15 p.m. the following day. Asked to assume that 1 or 2 such drinks were consumed shortly after 6:00 p.m. on June 26, 2013 and then 4 or 5 drinks later in the evening ending at 1:00 a.m. on June 27, the expert predicted that a zero BAC would be recorded in the blood sample. Asked further to assume 6 such drinks consumed between 10:00 p.m. and midnight on June 26, then at ordinary elimination rates, one might detect a BAC in the range of 0 to .10 mg. alcohol/100 ml. blood.

POSITIONS OF THE PARTIES

Prosecution

155On behalf of the Crown, Ms. Prihar submitted that, on the whole of the evidence, the guilt of the accused has been established beyond a reasonable doubt.

156Counsel described the complainant as a credible and generally reliable witness. S.W. acknowledged unflattering facts (i.e. jealousy of sister, prior alcohol and marijuana use), admitted lack of recall on certain matters, was not prone to exaggeration, and provided her account of being sexually assaulted though clearly not wanting to be here in court.

157Crown counsel noted that S.W. rejected the suggestions in cross-examination that she had a motive to fabricate. The evidence does not reasonably support the existence of any such motive.

158It was submitted that S.W. withstood an intensive cross-examination and when it was suggested that she had experienced a fun night of consensual sex, her demeanour noticeably changed – she became angry with the questioner.

159Crown counsel submitted that the accused deliberately took advantage of the 17-year-old complainant – inviting her to a non-existent “party” and then plied her with alcohol and marijuana. S.W. informed the court that she communicated her non-consent to sexual relations.

160The inconsistency between S.W.’s video statement to the police and her trial testimony regarding sexual relations amounting to rape on the morning of June 27, 2013 can be reasonably explained by S.W.’s disoriented condition and impaired memory of that morning.

161During the subject of confirmatory evidence, Ms. Prihar noted the marijuana paraphernalia located in Room 124 of Motel 6 and the one-quarter-empty Crown Royal bottle. In addition, on June 27, S.W. was seen to be in a disorientated state by the police and her mother. The CFS biology reports were supportive of S.W.’s account of the nature of the sexual contact she described in her evidence. The toxicology evidence was not inconsistent with S.W.’s testimony of the alcohol she consumed and was consistent with her consumption of marijuana. There were numerous red and tender marks on the complainant’s legs.

162Crown counsel submitted that little weight should be accorded Melanie Lee’s evidence as to S.W.’s demeanour and activities on the morning of June 27, 2013. The video exhibit depicts a very brief time that S.W. was in Ms. Lee’s presence. There would have been nothing remarkable about the lobby scene to have caused Ms. Lee to reliably commit the circumstances to memory. Where in conflict with the complainant’s evidence, S.W.’s evidence should be preferred.

163Crown counsel submitted that the accused was an entirely incredible witness. There were inconsistencies within his trial testimony and in some instances when compared to his video statement to the police. While initially claiming to recall the events of June 26/27, 2013 like the back of his hand, the accused was ultimately driven, in cross-examination, to rely on the passage of time and a claim of shock during his police interview to explain lack of recall and changes of position.

164It was submitted that the explanation advanced for telling the police he only met S.W. on June 26, 2013, when his testimony is that he met her a week earlier was unbelievable – he did not connect the two females as being the same individual. The version of events at the motel, as described in the accused’s trial testimony, differed in multiple and material respects from the account given to the police. By the conclusion of the accused’s testimony, no consistent version of his sexual contact with the complainant could be identified.

165There were a number of improbabilities in the accused’s evidence including his assertion of S.W. being a giddy stoner from one inhale of marijuana, his claim of S.W.’s indifference to the text message while describing her as worried, the reported duration of his trip to Tim Hortons on the morning of June 27, and his explanation of S.W. looking a little hung over as perhaps the result of too much sleep.

Defence

166Mr. Genesee submitted that the accused’s evidence itself raises a reasonable doubt to guilt. The accused provided an account of consensual sexual relations with S.W., and being a person of low education, his evidence may have been less than organized. The accused testified to events which occurred nearly four years ago.

167Counsel noted that rather than sticking to the version of events given the police, the accused “corrected” falsehoods in his video statement. He need not have, but in doing so, the accused was honest with the court. The accused’s “apology” written at the police station was not inconsistent with his trial testimony – it was an expression of regret, not a confession to sexual assault, after learning from the police that S.W. operated at the level of an eight-year-old – a circumstance which, if true, was not apparent to him.

168The accused’s account of S.W. having one inhale of marijuana and only one full mixed drink ought to be accepted. The toxicology evidence is neutral – it cannot confirm that S.W. consumed the alcohol and marijuana that she maintained she did in her testimony. In addition, the evidence does not support the existence of any sedative effect at 7:00 p.m. to midnight from S.W.’s morning medication.

169Mr. Genesee submitted that any sexual relations which occurred were in all respects consensual.

170It was argued that apart from any credibility determination by the court respecting the accused’s testimony, that the court cannot safely rely upon S.W.’s evidence.

171Mr. Genesee submitted that on June 26, 2013, the complainant could not wait to get away from her mother. She misled and disobeyed her mother’s instructions. S.W. was jealous of her sister, looking for fun and friends, and prepared to go drinking with someone she barely knew.

172It was submitted that S.W.’s account really amounts to nothing more than a bald, undetailed allegation of being raped. Counsel submitted that it may be that S.W. believes she was raped – if so, it is a false memory. As well, the court cannot discount the existence of a motive to fabricate on the part of S.W. – she disobeyed her mother, she stayed out all night, she did not get to go out for breakfast, not only was she facing parental discipline but when Dirt reported the contents of the text message to her she learned that her family were looking for her, and she was in fact approached by the police. To “cry rape” would deflect blame away from herself.

173For reasons which are not apparent, to this day, S.W. has not acknowledged the presence of a dog in the motel room.

174It was noted that there were no injuries upon S.W. The cause of redness on her legs was not the subject of expert evidence and could well have been consistent with consensual vigorous sexual activity. It was also noted that, between 7:00 p.m. on June 26 and 11:30 a.m. on June 27, S.W. did not scream or make any effort to leave the motel room even when Dirt was not in the room. The complainant had a cellphone but contacted no one. She made no complaint to any motel employee – on the contrary, though claiming to be hurt and in pain, on Ms. Lee’s evidence, as well as that of the accused and Exhibit #7, S.W. was joking and eating pizza in the motel lobby the morning of June 27. Ms. Lee had also seen S.W. earlier in the morning on her own in the lobby. No report was made to the bus driver. No complaint of sexual assault was made to Const. Shearer.

175As to the evidence of S.W. appearing disoriented (evidence of Consts. Shearer and Flores, S.W.’s mother, Exhibit #23), it was submitted that such evidence is worthy of minimal weight – Const. Flores’ testimony is valueless given the state of her notes, there is a lack of any such observations recorded by Const. Dawe or Ms. Neary, and the evidence is contradicted by the testimony of the accused supported by Ms. Lee’s evidence.

ANALYSIS

176As is frequently characteristic of many sexual assault trials where the pivotal issue is whether sexual relations were consensual or not, the credibility and reliability of the complainant and the accused become the significant determinations for the trier.

177"Credibility is a central issue in many criminal cases": R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at para. 55. The court may believe all, none or some of a witness' evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. Doell, 2016 ONCA 350, at para. 7; R. v. M.R., 2010 ONCA 285, at para. 6. Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. B.H., 2015 ONCA 642, at para. 22; R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

178The vast majority of sexual assault prosecutions turn on the evidence of the two principals -- the complainant and the accused: R. v. M.(S.C.), [1997] O.J. No. 1624 (C.A.), at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

179A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87.

180The parties here were in agreement as to the generally applicable law of sexual assault as outlined in the two authorities filed: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Wylie, 2012 ONSC 1077.

181As noted in Wylie, at paras. 91 (3) to (7) and (21), the existence of clear communication of non-consent does not require a complainant to scream, risk injury by physical resistance, or to sustain protests of objection:

91 The governing principles relating to consent and the defence of honest but mistaken belief in consent may be summarized as follows:

(3) "consent is...a mental state experienced only by the complainant"; "[c]onsent and assault are reciprocal concepts" and "[t]he limits of one ultimately define the other": R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at paras. 16, 41

(4) the actus reus of sexual assault is proven provided the Crown establishes (1) touching (the intentional application of force as defined in s. 265(1)(a) of the Criminal Code), (2) the sexual nature of the contact, and (3) the absence of consent on the part of the complainant: Ewanchuk, at para. 25; J.A., at para. 23; R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at p. 794; R. v. Crangle (2010), 2010 ONCA 451, 256 C.C.C. (3d) 234 (Ont. C.A.), at para. 16 (leave to appeal refused, [2010] S.C.C.A. No. 300)

(5) consent, as an element of the crime's actus reus, focuses on the "actual subjective consent in the mind of the complainant at the time of the sexual activity in question" not at some time before or after the activity (J.A., at paras. 23, 27, 46-7; Ewanchuk, at para. 26) - s. 273.1(1) of the Code provides that consent exists where there is "the voluntary agreement of the complainant to engage in the sexual activity in question"

(6) no consent is obtained in an instance of sexual touching in the circumstances described in s. 273.1(2) of the Code including where "the complainant expresses, by words or conduct, a lack of agreement to engage in the activity" - "for the purposes of the actus reus, "consent" means that the complainant in her mind wanted the sexual touching to take place": Ewanchuk, at para. 48

(7) with the mens rea for sexual assault "considered from the perspective of the accused" (Ewanchuk, at para. 45), the question becomes whether at the time of the touching of a sexual nature the accused knew that the complainant was not consenting "or was reckless or wilfully blind to the absence of consent" (J.A., at paras. 24, 48; Davis, at p. 794; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at paras. 25, 42):

...we must accept that the mens rea for sexual assault is also established by showing that the accused was aware of, or reckless or wilfully blind to, the fact that consent was not communicated. In other words, the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes".

(Park, at para. 39)

(21) the requirement of evidence of clear communication of consent defeats an accused's asserted misperception where the complainant is silent or her conduct equivocal or ambiguous: Ewanchuk, at paras. 51-2; M.O., at paras. 58-9, 67 per Rosenberg J.A. in dissent (dissent aff'd, 2000 SCC 49, [2000] 2 S.C.R. 594) - passivity or lack of resistance to physical sexual advances does not connote consent: Esau, at para. 20; R. v. M.L.M., 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3, at p. 4; Park, at para. 23; Dippel, at para. 21 - in other words, a complainant is not "required to forcefully make "no" obvious": R. v. Pittiman (2005), 2005 CanLII 23206 (ON CA), 198 C.C.C. (3d) 308 (Ont. C.A.), at para. 49 (aff'd, 2006 SCC 9, [2006] 1 S.C.R. 381) or to demonstrate "some minimal word or gesture of objection" (Park, at paras. 38, 45, 47) or "to express her lack of consent": J.A., at para. 37 (emphasis of original)

See also R. v. I.E.B., 2013 NSCA 98, at paras. 34-48.

182Our jurisprudence is replete with sexual assault cases where the victim of the alleged abuse was, at the relevant time, in an intoxicated state – see, for example: R. v. S.M.C., 2017 ONCA 107; R. v. Rand, 2012 ONCA 731; I.E.B.; R. v. Olotu, 2016 SKCA 84 (affd 2017 SCC 11). Such circumstances may raise particular evidentiary issues relating to gaps in a complainant’s memory as well as the legitimacy of communication of consent, on the part of the complainant, to sexual activity.

183No presumptive adverse inference may be drawn against a complainant who does not disclose sexual abuse immediately: R. v. A.D.G., 2015 ABCA 149, at para. 32. The relevance, if any, of the timing of an individual’s complaint will vary with the circumstances of each case: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R. v. M.(P.S.) (1993), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-409, see also, R. v. H., [2011] EWCA Crim 2753, at para. 6.

184Both S.W. and the accused spent some hours in the witness stand and both witnesses were extensively cross-examined. As a result, their demeanour while testifying was subject to scrutiny. While significant caution should be maintained in relying on witness demeanour as a barometer of testimonial credibility (R. v. Hemsworth, 2016 ONCA 85, at para. 45; R. v. Rhayel, 2015 ONCA 377, at para. 85; R. v. T.M., 2014 ONCA 854, at para. 64 (leave to appeal refused [2015] S.C.C.A. No. 110); Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Taniwha, [2016] NZSC 123, at paras. 1, 42-57), in appropriate cases, demeanour may be a factor worthy of consideration in credibility determination: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 21-26; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 29; Francois, at pp. 835-6; R. v. T.H., 2016 ONCA 439, at para. 4; R. v. A.A., 2015 ONCA 558, at para. 131.

185Similarly, a trier of fact must seek to avoid credibility assessments based upon other irrelevant stereotypes:

While in most instances the adversarial process allows wide latitude to cross-examiners to resort to unproven assumptions and innuendo in an effort to crack the untruthful witness, sexual assault cases pose particular dangers. Seaboyer, Osolin and Mills all make the point that these cases should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma: Mills, supra, at paras. 72, 117-19; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at para. 63. This is the law and the trial judge was right to apply it.

(R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121)

No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. ... There is no inviolable rule on how victims of sexual assault will behave: R v DD, 2000 SCC 43 at para 63, [2000] 2 SCR 275. It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Findings of credibility should not be affected by the timing of disclosure alone – that is, affected by a comparison between a complainant’s disclosure and the disclosure of a hypothetical ‘objectively reasonable’ victim.

(A.D.G., at para. 33)

That rape does not always involve genital injury is, we venture to suggest a well known proposition. There is reference to it in the current Crown Court Bench Book as one of a number of subjects for stereotyping which could lead a jury to approach a complainant’s evidence with unwarranted scepticism. Much, of course, will depend on the individual circumstances of any case.

(R. v. Williams, 2012 EWCA Crim 2516, at para. 35)

At page 11A the [trial] judge concluded:

"The other thing you may think is relevant in this case is that it would be a myth to assume every person who is subjected to a serious sexual assault reacts in precisely the same way. The presumption that people fight or scream, or injure their assailant, is a myth. Some do, some don't. Some complain immediately. Some don't complain for years. Sometimes it takes them a while to be able to tell the story in full. Sometimes their reactions on who they tell are particular to them, not to some particular stereotype. And so when you consider this case, consider it, I ask you simply, within that commonsense and experience, that offences of this sort cover ... the widest possible range."

In our view the judge was entitled, upon the issues which arose in the present case, to give the jury a direction upon the risk of stereotyping. … the judge's remarks were, in our view, unexceptional.

(R. v. MM, [2011] EWCA Crim, 1291, at paras. 38, 39)

See also, R. v. Vassell, 2016 ONCA 785, at paras. 8, 10-13.

186Persons believed to have been victimized by sexual assault are commonly taken by the police for medical examination. The examination may be undertaken by a specially trained sexual assault examination nurse whose reports/notes are ordinarily admitted as an exhibit at trial, in addition to the witness’ oral evidence, because the records generally meet past recollection recorded and business record admissibility criteria. The records may include information on a variety of matters including: observations of bodily condition and injuries (R. v. Marquaye, 2015 ONCA 525, at para. 6; R. v. P.G., 2013 ONCA 520, at paras. 8-9 (leave to appeal refused [2013] S.C.C.A. No. 421); R. v. P.E.M., 2012 ONCA 275, at para. 7; R. v. Keats, 2017 NSCA 94, at paras. 49, 64), the demeanour or pain status of the patient (Barber v. Humber Regional Hospital, 2016 ONCA 897, at paras. 63-71; R. v. Quashie (2005), 2005 CanLII 23208 (ON CA), 198 C.C.C. (3d) 337 (Ont. C.A.), at para. 26 (leave to appeal refused [2005] S.C.C.A. No. 509), or statements made by the patient (R. v. Bent, 2016 ONCA 651, at para. 18; R. v. P.G., 2011 ONCA 50, at paras. 2-3, 5).

187The complainant was asked no questions relevant to any prior sexual history or about that part of page 1 of the FEF (Exhibit #11) completed by Ms. Neary suggesting sexual activity a short time “[p]rior to” the alleged assault. Of course, the process mandated by s. 276 of the Criminal Code is mandatory: R. v. Vassell, 2016 ONCA 786, at para. 8.

188This case presents radically divergent versions of the events which transpired on June 26/27, 2013.

189On S.W.’s account, on June 26, she was a lonely 17-year-old looking to have fun and to consume marijuana and alcohol at a party hosted by the accused who had been kind to her a week earlier. She was not looking for sex. Once in the accused’s motel room, she smoked marijuana and was quickly plied with a number of ounces of whiskey. No party materialized. She had made a mistake going to the motel room. Essentially incapacitated by intoxicants, she was powerless to physically resist the accused’s sexual advances. She was menstruating. Despite saying “no” more than once, the accused sexually assaulted her. She passed out. She awoke sore and in pain in particular in her vaginal and rectal areas. Without money, and afraid of the accused, and wanting to get home to her parents, she made no effort to flee or to immediately report being sexually assaulted. Once away from the accused she became upset and disorientated.

190The accused informed the court that he understood S.W. to be 18 years of age. He was then 26 years of age. She was cute. They flirted. She accepted his invitation to go drinking at his motel room. Once there, S.W. had one marijuana inhale and one mixed whiskey/pop drink. S.W. appeared perfectly normal. She removed her own upper garments and subsequently, with S.W. aggressively and actively engaged, consensual sexual relations occurred. The next morning, with S.W. still appearing normal, and after eating pizza in the motel lobby, she was to go home to deal with her parents over missing curfew and staying out all night. Expecting to see S.W. again, the accused gave her his phone number.

191Both S.W. and Bradly Walsom live with disabilities. No expert evidence was led relating to any cognitive or behavioural consequences associated with these disabilities. These witnesses, and their respective mothers, testified generally as to diagnoses and symptoms. S.W. was administered prescribed medications and the accused self-medicated with marijuana. On the record here, such as it was, the principals’ disabilities did not impact upon the events of June 26/27, 2013 and have no particular relevance to the believability or reliability of the respective witnesses’ evidence.

192Any consideration of the totality of circumstances in the present case requires the court to take into account that the trier of fact did not have the benefit of hearing evidence from two individuals – Cameron Poole and Theresa.

193In addition, the trier of fact must be cognizant of certain limitations in the police investigation. The police did not seize the Crown Royal liquor bottle from Room 124. The evidence is unclear as to the content-size of the bottle or the quantity of alcohol remaining in the bottle. Although S.W. reported to Ms. Neary that she had scratched the accused, resulting in the taking of fingernail scrapings, there is no evidence of the results of any analysis of those samples and no evidence as to whether there were any scratches on the accused’s body at the time of his arrest.

194On the evidence accepted by the court, S.W.’s prescribed medication would not have been a significant factor alone or in combination with consumed intoxicants to S.W.’s condition from 7:00 p.m. onward on June 26, 2013. No trazodone was administered to her on that date. Concerta, consumed between 7:00 and 8:00 a.m. on this date, is a stimulant and not a central nervous system depressant – a drug with short half-lives. The toxicological evidence at trial was less clear as to the influence of epival consumed the morning of the date of the alleged sexual assault.

195At trial, S.W. maintained that she was sexually assaulted by the accused. There was no consent. Despite saying “no”, she was raped while in a vulnerable condition. S.W. described the vaginal and anal intercourse to which she says she was subjected before passing out. The complainant articulated her feeling of helplessness on account of the substances she had consumed. The testimony was given in a coherent manner.

196In a fair but intensive cross-examination, S.W. made it clear that she was certain that she had not consented to sexual relations with the accused. She informed Mr. Genesee that while she did not want to be in court, she was telling the truth. The complainant, in tone and volume of her voice, and at times in the content of her answers, became angry and frustrated with her cross-examiner when it was suggested that, after a night of great consensual sex, she cried “rape” to serve her own ends. S.W. stridently rejected the suggestion of any motive to fabricate a false claim.

197In her testimony, S.W. stated that her intoxicated state prevented further resistance beyond her verbalization of non-consent. The complainant explained that on June 27, scared of the accused, she did not use her cellphone or complain to anyone at the motel – she did what she had to in order to get to her parents.

198At one level, and subject to countervailing considerations discussed below, S.W. presented as a witness endeavouring to tell the truth as she currently believes it to be. Arguably, aspects of the complainant’s evidence of non-consensual sexual relations were confirmed by other evidence including:

(1) as to S.W.’s evidence of being disoriented on June 27 – Const. Flores described her as “dazed”, Const. Shearer found S.W. to be upset and appearing dishevelled, and S.W.’s mother found her to be upset and not very coherent

(2) as to S.W.’s evidence of being sore on June 27 – Ms. Neary identified 8 areas of redness on the complainant’s legs nearly a day after the alleged assault (5 of which were areas of tenderness)

(3) consistent with S.W.’s account that the accused ejaculated during anal intercourse, the accused’s DNA was discovered on a rectal swab of S.W.

(4) consistent with S.W.’s evidence that the accused ejaculated on her stomach, the accused’s DNA was discovered on a swab of S.W.’s abdomen.

199In assessing S.W.’s testimony in relation to the evidence of the accused, the complainant was not cross-examined about certain matters addressed by the accused in his evidence including:

(1) any discussion of her age with the accused

(2) whether she informed him that she as menstruating

(3) whether birth control protection was discussed

(4) whether she removed her own top and bra

(5) whether she encouraged the accused during intercourse to go harder and faster.

200Apart from the accused’s contradicting testimony, turning to matters which might operate to diminish the credibility/reliability of the complainant’s evidence, she informed the court that she was not good at reporting times and dates. In response to some questions, S.W. professed a lack of recall on account of the years which have passed since the June 2013 dates about which she testified.

201The complainant’s evidence suffered from a number of inconsistencies including the following:

(1) S.W. variously stated that only the accused invited her to a party, and, that “they” extended the invitation (the accused and Dreads)

(2) S.W. testified both that the other girls at Tim Hortons declined the party invitation, and, that she thought “everybody” from there was coming to the party

(3) S.W. variously testified that she had never been invited to a party, and, that because she liked to party she accepted the accused’s invitation

(4) although S.W. testified at trial that she had not been jealous of her twin sister “all” of her life, she related to the police that she had been jealous of her sister all her life

(5) after expressing certainty in her in-chief evidence that she had shared a joint with the accused at Medusa’s Cave on June 26, the complainant equivocated in cross-examination stating that she may have been there smoking marijuana on her own

(6) although S.W. told the police on June 28, 2013 that she accompanied the accused and Dreads to get their marijuana, at trial the witness stated that they already had marijuana with them

(7) after S.W. testified in-chief that she had smoked marijuana 3 or 4 times prior to June 26, 2013, she stated in cross-examination that it had only been twice

(8) aside from the Medusa’s Cave joint, S.W. gave varying accounts of what additional marijuana she consumed on June 26:

• 3 or 4 joints (reported to Nurse Neary)

• 1 joint (June 28/13 police statement)

• 1 joint and a bong smoke (in-chief evidence)

• 2 joints and a bong hit (cross-examination)

(9) in describing her prior experience with alcohol, S.W. testified in-chief to 2 prior occasions while reporting more extensive experience in cross-examination

(10) over time, S.W. provided varying accounts of the alcohol she consumed on June 26:

• 6 to 8 drinks (reported to Nurse Neary)

• 2 to 5 drinks (in-chief testimony)

• 5 or 6 drinks (cross-examination)

(11) in describing the sequence of non-consensual sexual activity, S.W. at one point in her in-chief evidence reported 2 instances of anal intercourse which she subsequently modified to a single instance

(12) while S.W. testified during her in-chief evidence that she was sexually assaulted during the evening of June 26 before Dreads came back to the room, she informed the police that she was sexually assaulted the next morning (June 27) as Dreads was asleep in the adjacent bed.

202Along with the final two examples of inconsistency – instances of changeable testimony on S.W.’s part relating directing to the nature of the alleged sexual assault – the trier of fact must, in light of the defence position of the complainant unreliably reconstructing events, consider additional evidence reflective of uncertainty by the complainant as to what actually occurred in the motel room. It is difficult to determine the cause of S.W.’s reported hallucinations.

203S.W. testified that on the morning of June 27, when the accused asked her if she had fun, she responded, “I don’t know”. On S.W.’s evidence, when asked by Theresa whether she was sure that she had been raped, she responded, “I’m pretty sure I was raped”. Asked direct questions by Const. Shearer, the complainant was unable to answer some of the officer’s questions and made no direct complaint of having been sexually assaulted. Const. Shearer testified that S.W. reported having no recall of what occurred on June 26 from the point of being outside and subsequently waking up in a motel room. According to Ms. Neary’s report, S.W. reported: “Confused through night – Remembers in small bits”. Although Ms. Neary’s report recorded the complainant as stating that her breasts were sucked, and that the alleged assault also included cunnilingus and digital penetration of her vagina, none of these matters were described in S.W.’s trial evidence.

204S.W.’s evidence was at odds with aspects of the evidence other than the testimony of the accused. Examples include the following:

(1) although S.W. testified that on June 27 she was spoken to by a male officer, the evidence of the police witnesses supports the view that only female officers dealt with the complainant prior to arrival of the ambulance

(2) while S.W. testified to a belief that there was semen in her mouth, an assertion repeated to Ms. Neary, the oral swab of S.W.’s mouth did not reveal the presence of the accused’s DNA

(3) contrary to S.W.’s evidence at trial that her clothes were entirely removed at the motel, Const. Shearer testified that the complainant reported awakening without her shirt and her underwear below her knees, and, Ms. Neary recorded that S.W.’s clothing “worn during the assault” was not damaged.

205In his trial evidence, Bradly Walsom testified that he had no uncertainty but that sexual relations with S.W. on June 26/27, 2013 were at all times consensual. The complainant exhibited no abnormality or unusual behaviour at any time. S.W. was not intoxicated as she consumed very little in the way of intoxicants. There was no trap or trick of S.W. on his part. They were physically attracted to one another.

206Consistent with S.W.’s evidence, the accused testified that he never threatened the complainant. She was a willing and fully-participating party in their sexual activities which did not include anal intercourse. Any redness or tenderness on the complainant’s body was consistent with the vigorous and consensual sexual contact he described experiencing with S.W.

207In support of his testimonial report of consensual sexual relations, the accused relied on certain matters including the following:

(1) despite her claim at trial to having no recall as to whether she had a cellphone with her on June 26/27, 2013, S.W. in fact had a phone – she at no point used the phone to tell anyone that she had been raped

(2) although S.W. claimed minutes of forced anal intercourse causing pain, medical examination of the complainant’s anus and rectum did not reveal any injury – the accused’s DNA in S.W.’s rectum is explicable by single post-ejaculative penetration

(3) no medical or expert evidence provided support for S.W.’s assertion that she was hallucinating at the motel or thereafter

(4) Melanie Lee, an independent witness, observed S.W. on her own in the motel between 8:00 and 9:00 a.m. on June 27 – the complainant made no effort to leave or to report an assault

(5) Ms. Lee’s testimony, and the motel lobby video, amount to evidence inconsistent with any sexual abuse of S.W. – the complainant was laughing, conversing with the witness, and eating pizza

(6) S.W. made no report of being sexually assaulted to Ms. Lee, the bus driver, or to the police who approached her near the Bramalea City Centre midday on June 27

(7) there was no evidence from Ms. Lee, Const. Dawe or Ms. Neary of distress on the part of S.W.

(8) giving S.W. his phone number is not consistent with someone seeking to avoid detection for rape

(9) the accused was shocked at being arrested for sexual assault – he was cooperative with the police providing a statement and volunteering his DNA

(10) at trial, of his own volition, he corrected false embellishments in his account to the police.

208Having regard to the accused’s account of consensual sexual relations, and taking into consideration the supporting evidence described in the last paragraph, it was submitted that a reasonable doubt exists that the complainant’s allegation of sexual assault cannot be true either because she had honestly but mistakenly come to believe in the truth of her proffered account or because she has, over time, falsely maintained her account originally formulated to deflect blame away from her in particular for parental disobedience.

209Cross-examination of the accused resulted in significant diminishment of the believability of his version of events having regard to a number of factors and reasons including:

(1) while initially claiming a clear memory of the events of June 26/27, 2013, like “it was yesterday”, progressive cross-examination questioning revealed this not to be the case relating to material matters

(2) the improbability that the 26-year-old accused and 17-year-old teenager, essentially strangers to one another, would have had consensual sexual relations – in describing to the police their bus ride to the motel, the accused said: “like how well would you get to know somebody in a half an hour?”

(3) although the accused described S.W. as a “giddy stoner”, he also described her as “normal” and as having only one drink and one inhale of marijuana

(4) the accused has variously described who suggested sex in the shower – he did (trial testimony) or S.W. did (accused’s June 28, 2013 statement to police)

(5) the reason for discontinuing sex in the shower, described in his police statement by the accused as it was “no fun anymore”, was described at trial as because S.W. wanted him to go “harder and faster”

(6) while informing the police that S.W. first raised the subject of anal sex saying that she liked it, the accused testified at trial that he was the one who suggested anal sex

(7) in his in-chief evidence, the accused stated that immediately after halting his attempt at anal intercourse, S.W. “got on top” of him, while in cross-examination the accused maintained that vaginal intercourse in a spooning position intervened between the attempt of anal sex and S.W. getting on top of him

(8) the accused acknowledged that he lied to the police in his June 28 videotaped statement in an effort to portray an unequivocal account of consensual sexual relations

(9) although the accused described the complainant as “screaming” during consensual sex, this seems improbable given the motel setting

(10) the accused’s evidence became hopelessly confused and inconsistent as to when the last sexual contact was with S.W. and whether Dreads was in the room or not

(11) the accused’s evidence was inconsistent as to whether he wrote his name on the bus transfer while in Room 124 or at the bus stop

(12) the accused claimed no recall of the identity of the “friend” who it was said forwarded the text message on June 27 relating to S.W.’s whereabouts

(13) in content and presentation, the accused’s effort to explain what he meant in describing S.W. as “a little hung over”, made little sense in the context of what he maintained S.W. had consumed in the way of marijuana and alcohol

(14) while the accused testified that he had nothing to apologize for, he wrote a letter of apology – though advancing that he had been led by the police to believe that S.W. was retarded and operating at the level of a 12-year-old and incapable of consenting, the credit to be afforded that explanation must be assessed in light of the accused’s acknowledgment of giving a voluntary statement, no observations on his part supporting this to be S.W.’s condition, and no reference in his apology to such disability on the part of S.W.

210Undoubtedly, a trier of fact in a criminal trial should be encouraged to make every effort “to try to figure out who is telling the truth as long as … [it is] recognize[d] they might not be able to do so”: R. v. Grant, 2016 ONCA 639, at para. 124.

211Turing to the structure of the W.D. analysis relating to burden of proof, insofar as it relates to credibility, Mr. Walsom is disentitled to acquittal on the basis of the trier of fact believing his evidence. On its face, the accused’s claim of consensual sexual relations with S.W., a female who was essentially a stranger to him, is not creditworthy.

212The accused’s version of events has shifted over time. Despite allowances for the passage of time, in content and presentation under oath, it became difficult to determine by the conclusion of the accused’s evidence at trial precisely what circumstances he was maintaining existed in the motel room on June 26/27, 2013.

213The accused’s demeanour, inconsistencies in his versions of events, and improbabilities in his account of relevant events, all undermine the truthfulness of his assertion of consent on the part of S.W.

214The accused’s evidence is incapable of belief and does not raise a reasonable doubt as to guilt.

215The court accepts Melanie Lee’s evidence as credible and reliable. There was no suggestion that she was not independent. She was interviewed by the police at the time of the alleged assault, gave a statement and provided the surveillance tape to the police. She turned her mind to relevant events contemporaneously in time with their occurrence.

216The court must determine whether, on the basis of evidence accepted by the court, the prosecution has established guilt beyond a reasonable doubt.

217In some cases, in the context of the entirety of the trial record, acceptance of the prosecution evidence, and in particular the complainant’s evidence, may satisfy the Crown’s burden of proof beyond a reasonable doubt: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53 (leave to appeal refused [2007] S.C.C.A. No. 69); R. v. D.(R.), 2016 ONCA 574, at paras. 13-22.

218A trier “is not required to resolve every inconsistency in the evidence”: R. v. D.H., 2016 ONCA 569, at para. 35. Some concerns as to the believability of a witness’ evidence may, for example, be legitimately disregarded in light of intoxication at the time of relevant events, the influence of the passage of time or the peripheral nature of discrepancies. That said, other concerns or conflicts cannot be discounted as easily without endangering proper application of the burden of proof upon the prosecution.

219In the present case, S.W. testified in a manner, and in testimonial content, credibly providing an account of sexual relations with the accused to which she did not consent. Put differently, it can confidently be said that S.W. honestly believes that she was the victim of a sexual assault.

220Be that as it may, it would amount to founding guilt on some lesser standard than proof beyond a reasonable doubt, if the trier failed to address reliability problems in the complainant’s evidence. While remaining sensitive to the concerns expressed in paras. 181, 182 and 184 above, there are nevertheless very real reliability issues (as canvassed at paras. 200 to 204) relating to S.W.’s evidence which are simply not resolvable to the point of safely founding a conviction including apparent reconstruction or recovered memory of sorts, memory gaps, and certain inconsistencies which cannot fairly be described as peripheral or subject to compelling explanations therefor.

221This was a close case. The complainant was not disbelieved but the reliability of her evidence, in the context of the case as a whole, left a reasonable doubt as to the guilt of the accused.

CONCLUSION

222The accused is found not guilty.

Hill J.