Court File and Parties
COURT FILE NO.: CR-16-10000407-0000 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – D.K.
COUNSEL: Onelia Delgado, for the Crown Francesco Yaskiel, for D.K.
HEARD: April 25-26, 2017
R.F. GOLDSTEIN J.
PUBLICATION BAN ON IDENTITY OF THE COMPLAINANT
[1] On April 5, 2013 D.K., the accused, and C.V., the complainant, were students at V[…] College at the University of T[…]. They both attended a dorm party. When the party broke up they went back to D.K.’s room. C.V. says that D.K. sexually assaulted her. She says that she did not want to have sex with him and that he forced himself on her. D.K. says that he asked C.V. for her consent to have sex. He says she consented and willingly participated.
[2] D.K. was charged with sexual assault about two years later. C.V. and D.K. both testified at a trial before me. Both C.V. and D.K. were composed, compelling, articulate, and intelligent. Ultimately, on the whole of the evidence, I am left with a reasonable doubt. For the reasons that follow, the charge of sexual assault is dismissed.
EVIDENCE:
[3] C.V. met D.K. at the University of T[…] in the fall of 2012. C.V. and D.K. both lived in residence at V[…] College. D.K. lived in R[…] House. C.V. lived in U[…] Hall. The residences were very close to each other. They were both students. C.V. was in the Vic1 program. The Vic1 program is a program for first-year students who take some of their classes in small seminar-style groups. Most first-year classes at the University of T[…] are very large. D.K. was in second year. He had been a Vic1 student in his first year. C.V. and D.K. met briefly through a mutual friend while studying. D.K. testified he was well known in B[…] Hall as a result of being a house president and very active in social and academic affairs.
(a) The Formal Dinner
[4] D.K. and C.V. next encountered each other sometime in late March or early April 2013 at a formal university dinner. They were seated at the same table next to each other. The table included a mix of students, faculty, and university administrators. She realized afterwards that he was there because he was a mentor to Vic1 students. They chatted about themselves. They discussed the fact that she was interested in being a house president the following year. He mentioned that he was interested in being president of B[…] Hall and a don. D.K. recalled C.V. mentioning that she and her family had lived in Brazil for a while. He found that interesting because he worked in a Portuguese butcher shop and was interested in Portuguese and Brazilian culture.
[5] C.V. testified that D.K. encouraged her to drink wine, although she was underage. She testified that she was uncomfortable with his suggestions, as not only she was underage but she had to study the next day for exams. In cross-examination she agreed that D.K. did not pressure her to have wine.
[6] D.K. testified that he suggested she drink a glass of wine as it was free. He denied encouraging her to drink. Free alcohol was different from the norm on campus. She said “no” and he left it at that.
[7] C.V. testified that at the end of the dinner D.K. invited her back to his room as he had some bourbon. C.V. declined. D.K. testified that he had a nice bottle of Scotch whiskey – a Lagavullan 16 – that he had received as a gift. He offered to share it with C.V. some time.
(b) The Residence Party – April 5, 2013
[8] C.V. and D.K. were both at a residence party on April 5, 2013. C.V. testified that she bumped into him there at about 11:45 pm. They chatted. He asked her if she wanted to leave the party. She testified that she did.
[9] D.K. also testified that they bumped into each other at the party. They chatted about the coming year. C.V. was to be a house president and he and his friend were to be co-presidents of B[…] Hall. He described her as friendly and flirtatious with him. He invited her back to his place. He was hoping for some kind of sexual encounter with her. She agreed to go back with him after staying at the party a little bit longer. When the party started to break up they found each other and left together.
(c) The Events In D.K.’s Room – April 5-6, 2013
[10] C.V. and D.K. agree that they went to D.K.’s dorm room. They sat on the couch. C.V. described his room as a single room with a couch, a bed, and built-in furniture such as a desk. There was a partition that separated the sitting area from the bed and the closet. She testified that D.K. began to kiss her. She was a bit surprised and uncomfortable with it. She excused herself from the couch and was trying to think of a graceful excuse to leave. She went over to the window. D.K. walked over to her. She turned to face him. She said she wasn’t interested and wanted to go back to her room. D.K. grabbed her arm in the lower bicep area above her elbow and guided her back to the couch. He said it would be alright. She was uncomfortable and vocalized that. She said she wanted to leave three or four times. He insisted that she should stay and it wasn’t a big deal. He removed her sweater. She tried not to cooperate by keeping her arms close to her body and trying to make it difficult to take her sweater off. He was able to take it off anyway. He next removed her pants by unbuttoning them and tugging them down from her hips. He also removed her underwear. She continued to vocalize her discomfort but he did not react. He removed his own clothes and went to get a condom. They began to have sex. C.V. testified that she braced her hands against him to try to keep him off of her but she could not. She continued to say that she did not want to be having sex with him but he only said how good everything felt. He was much bigger and stronger than her. He eventually pulled out and ejaculated on her stomach. He got up and got a tissue for her to wipe herself off.
[11] D.K. testified that when got to his room with C.V. they started to kiss standing up. He asked her why she was hooking up with him. She responded that she had wanted to hook up with him for a while. She also said that she did not want their mutual friend R. to know that they were hooking up. They went to the couch and started to undress. She pulled her sweater up and he lifted it over her head and took it off. She told him to take his shirt off and he did. She unzipped her jeans and pushed them down to her knees. They were quite tight but he tugged them off. She took off her own underwear. He took his jeans off. They continued to touch each other. He asked if she wanted to have sex. She did. He went to get a condom. He put it on and tried to have sex with her. She had to guide him inside her.
[12] D.K. testified that he was very sexually inexperienced at the time. C.V. asked him if it was his first time. That made him nervous and self-conscious. He began to lose his erection. He pulled out of her and said that it was not going to happen. He described it as an awkward moment. They got dressed. He went to kiss her goodnight. They started kissing and touching again. His erection returned. She asked if he wanted to have sex again. He said yes. He went to get another condom. They undressed again. They started having sex again. She then asked him if he wanted to remove the condom. She told him she was on the pill. He knew it was risky but decided to have unprotected sex anyway. It was his first time having sex without a condom. He remarked on how good it felt. She said something along the lines of “welcome to the world” or “welcome to the real world”. In cross-examination, C.V. strongly disagreed that she told him to take off the condom or that she was on the pill. She agreed in cross-examination that she was on the pill at the time.
[13] D.K. testified that at that point he told her that he would pull out. He did so and ejaculated on her stomach. He got her a tissue to clean up. He said “thank you.” C.V. responded by saying “never thank someone after sex.” He further testified that at no time did C.V. ever protest or ask him to stop.
[14] In cross-examination, C.V. disagreed that there was no reason to go back to D.K.’s place if it wasn’t solely for the purpose of sexual contact. She did not expect sexual contact, she said. She agreed that D.K. never threatened her, harmed her, or attempted to take her phone away.
[15] D.K. and C.V. both testified that he invited her to sleep over. She did not want to. D.K. testified that she said that she wanted to sleep in her own bed. C.V. testified that she wasn’t sure what to do so she put her clothes on and laid down beside him on the bed. She waited until she was sure he was asleep and then went to her own room. It was quite late and she got back to her room at about 5:00 am.
[16] D.K. testified that he asked C.V. if she was interested in pursuing a casual relationship over the next year. She said she would like to, and they exchanged cell phone numbers. Then she left his room.
(d) The Leadership Seminar – April 6, 2013
[17] The next day, April 6, 2013, C.V. saw D.K. at a seminar day for students who would have leadership positions at V[…] College. They were both going to be house presidents. C.V. testified that they made eye contact but had no other interaction. D.K. testified that they sat down and had a friendly conversation over breakfast. He further testified that near the end of the day there was a session for the incoming house presidents. Since C.V. and D.K. were both going to be house presidents they were both present.
(e) The April 7, 2013 Meeting in D.K.’s Room
[18] C.V. and D.K. both testified that the day after the leadership seminar, April 7, 2013, D.K. sent C.V. a text during the evening. He asked her to hang out. She went over to his dorm room.
[19] C.V. testified that she told him that she wasn’t interested in spending time with him. They chatted for a bit. He said that they should hook up again. She was disgusted. She left.
[20] D.K. testified that she told him that nothing further would happen sexually between them because she had heard that word was getting around the V[…] bubble that they had hooked up. R., whom she had specifically mentioned, had heard about the encounter. She was upset about it. D.K. had indeed told some of his friends about the encounter. He was excited about it because he had had very few sexual encounters up to that point. He told her that R. must have heard them having sex. R.’s and D.K.’s rooms were next to each other. Their rooms connected through the bathroom. That, of course, was untrue. D.K. testified that he told R. but he was embarrassed that he had blown his chance with her. He lied to her in order to try and salvage something of their relationship.
[21] C.V. agreed in cross-examination that she was aware that R. lived on the same floor as D.K. She agreed that she was upset that other students had learned that she and D.K. had hooked up. She started seeing someone else shortly after that.
(f) The April 9, 2013 Meeting in D.K.’s Room
[22] D.K. testified that just after midnight on April 9, 2013 he sent a Facebook message to C.V. He asked if she had a minute to chat about “yesterday”, meaning their discussion on April 7, 2013. C.V. suggested that they meet, which surprised D.K. He testified that he expected they would only have a Facebook chat. He reiterated over Facebook that R. had heard them, which, again, was not true. C.V. came over. He again explained that R. had heard them having sex. He apologized again to her. They discussed courses she would be taking. He then foolishly asked her if she wanted to hook up again. She said no, as she was seeing someone.
[23] In cross-examination Ms. Yaskiel suggested that C.V. went again to D.K.’s room during the early morning hours of April 9, 2013. C.V. adamantly denied that she did any such thing. Facebook messages, however, make it clear that they did have such a meeting. C.V. agreed that she and D.K. must have met but she had no memory of it.
(g) Encounters Between 2013 and 2015
[24] Over the next couple of years D.K. and C.V. ran into each other at least once, and possibly more. They were both at a bar called “Noone Writes to The Colonel”. They were both there for a birthday party for their mutual friend. C.V. testified that they had no meaningful contact. She froze and told her friend that they had to leave. D.K. testified that he sat beside her and they chatted.
[25] C.V. reported the alleged sexual assault to the police in 2015 after going to counselling to deal with things. She testified that she was concerned about her safety and what might happen if she ran into D.K.
ANALYSIS:
[26] A criminal trial is not simply a credibility contest. A trial judge or a jury does not pick which version to believe. Rather, as set out by Cory J. in R. v. W.(D.), [1991] 1 S.C.R. 742, the analysis should follow these lines:
First, if I believe the evidence of the accused, I must acquit.
Second, if I do not believe the evidence of the accused but I am still left in a state of reasonable doubt by it, I must acquit.
Third, even if I am not left in doubt by the evidence of the accused, I must still determine, based on the evidence that I do accept, whether I am satisfied beyond a reasonable doubt of the guilt of the accused.
[27] I agree with Code J.’s approach to the W.D. analysis in R. v. Thomas, 2012 ONSC 6653 at paras. 22-24 (I excerpt the key points):
The first aspect of this argument is based on a literalist reading of the model jury charge in W.D., as if it sets out three sequential steps that it is of fact must take, one at a time…
In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2")…
… A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence…
[28] Code J.’s approach is consistent with the Supreme Court of Canada’s comment on the role of a trial judge (or a jury), which is to determine whether, on the whole of the evidence, there is a reasonable doubt: R. v. Vuradin, [2013] 2 S.C.R. 639 at para. 21; R. v. C.L.Y., [2008] 1 S.C.R. 5 at paras. 6, 8. The analysis must always be undertaken bearing in mind that the Crown ultimately bears the burden of proof and that a trial is not a credibility contest between the Crown and defence witnesses.
[29] For convenience, however, I analyze the evidence by asking these questions:
(a) Do I accept D.K.’s account or does it leave me with a reasonable doubt? (b) Do I accept the Crown’s evidence? (c) Am I uncertain as to which account to believe?
(a) Do I accept D.K.’s account or does it leave me with a reasonable doubt?
[30] I accept D.K.’s evidence. There are no obvious contradictions. His evidence of the encounter with C.V. on the night of April 5-6 is plausible. His self-described fumbling is entirely consistent with what one would expect of an inexperienced teenage boy. Furthermore, as I will also address when dealing with C.V.’s evidence, his evidence of how their clothing came off is also plausible.
[31] I also find that D.K.’s evidence of how he obtained C.V.’s cell phone number must be correct. It supports his credibility. C.V. agrees that she must have given him her cell phone number at some point. They were only acquaintances prior to the party on April 5, 2013. It makes sense that they exchanged cell phone numbers in the early morning hours of April 6, 2013. There is no evidence that he obtained her number from someone else, such as a mutual friend. There is also no evidence that they were anything but the most casual of acquaintances prior to that evening. Furthermore, both D.K. and C.V. agree that D.K. texted her on April 7, 2013. They also agree that D.K. asked her to hang out. D.K. must have already had her cell phone number at that point. C.V. testified that she left D.K.’s room when he was sound asleep. I find that she is in error about that because it does not account for the exchange of cell phone numbers. It makes sense that they exchanged cell phone numbers when C.V. left his room in the early morning hours of April 6, 2013. That makes D.K.’s evidence that C.V. was interested in pursuing a casual relationship plausible. It also makes C.V.’s evidence that she slept over and left when he was asleep implausible.
[32] I also find that the Facebook chat supports D.K.’s credibility. The key excerpt is this:
D.K.: Alright, I spoke to r. today turns out he heard when you were over. Sorry that I told h. but I honestly didn’t think anything would come of that. C.V.: Okay can we talk about this face to face? This is literally the worst form of communication. D.K.: hahaha, fair enough. Want to come by? C.V.: Yeah let me in in like 2 D.K.: just text me from outside
[33] This excerpt is significant for several reasons: The Facebook chat supports D.K.’s evidence that he told his friends about what happened. It also supports an inference that he had told C.V. that R. must have heard them having sex. It supports D.K.’s evidence that what upset C.V. was the fact that their sexual encounter had become known. Finally, it also demonstrates that C.V. and D.K. were in possession of each other’s cell phone numbers in advance of that point.
[34] Crown Counsel argued that D.K. would lie to this Court because he showed himself capable of lying to C.V. I reject the notion that because D.K. lied to C.V. about telling his friends about their sexual encounter that affects his credibility in this Court. D.K. was candid about lying to her. He lied for the purpose of trying to salvage the relationship. He admitted that he had been an immature and foolish 19-year old with little experience of women and relationships. If anything has the ring of truth in this trial it is that explanation. Lying to a potential partner in pursuit of romance is as old as romance itself.
[35] Although my acceptance of D.K.’s evidence is enough to decide this case, for the sake of completeness I will turn briefly to the next issue.
(b) Do I accept the Crown’s evidence?
[36] I think it is important to state that I do not find that C.V. lied. As I said at the beginning, I found her to be articulate, compelling, composed, and intelligent. She did not argue when faced with contradictions and was prepared to accept mistakes. Human memory, however, is permeable and can change over time. C.V. was obviously angered that word had gotten around V[…] College that she and D.K. had hooked up. She was upset with D.K. about it. I agree with Ms. Yaskiel’s submission that in her mind consensual sex appears to have turned non-consensual. In other words, she seems to have perceived it differently over time. Given some of the problems in her evidence it casts doubt on the reliability of her version of events.
[37] C.V. obviously could have gone back to D.K.’s room with no intention of having sex, or at least no intention of going as far as sexual intercourse. It was not necessary for C.V. to physically resist D.K. in order to show that she did not consent. A simple indication of “no” is enough and sexual assault victims, who may well be terrorized, should not be disbelieved simply because they visit someone’s room late at night or they do not fight back against bigger, stronger people who could physically harm them.
[38] That said, some of C.V.’s evidence did not make sense. She agreed that D.K. did not turn on the lights when they got to his room. She did not ask him to turn on the lights. She testified that when she got up from the couch, she went to the window. She did not go to the door. The door was closer to the couch and would have made more sense. C.V.’s evidence as to how D.K. removed her clothing did not make physical sense. She also contradicted herself to some extent. She indicated that she tried to keep her arms close to her body to prevent D.K. from removing her sweater. Yet she agreed in cross-examination that she raised her arms to allow him to pull her sweater off. C.V. testified that she was wearing form-fitting jeans that were tight around the ankles and that D.K. unbuttoned them and pulled them down. In cross-examination C.V. agreed that her pants were tight and it was difficult to remove them. She agreed in cross-examination that her clothes were not damaged in any way. C.V. testified in chief that when D.K. started kissing her she vocalized that she was not interested. In cross-examination, C.V. agreed that she and D.K. were French kissing “a little bit”. As I mentioned dealing with D.K.’s evidence, I also find that C.V. and D.K. exchanged cell phone numbers when she left his room in the early morning hours of April 6, 2013. That casts doubt on the reliability of her version of events.
[39] C.V. could not recall the Facebook conversation or the face-to-face meeting on April 9, 2013. It does seem difficult to accept that she was traumatized if she agreed to go back to D.K.’s room for a second time after the alleged sexual assault. I realize that many sexual assault victims do exactly that, but C.V. had no memory of it. In fact, she was adamant that she had not gone over to D.K.’s room after midnight on April 9, 2013. She did not accept that it must have happened until confronted with the Facebook messages. The lack of memory does not cause me to question her credibility. It does cause me to be concerned about the reliability of her recollection. It also seems more consistent with the defence theory than with the prosecution theory. Furthermore, as I have mentioned the Facebook chat is consistent with C.V. being angry about and upset about word getting out about the hook-up.
[40] I also found C.V.’s description of D.K. to be somewhat at odds with D.K.’s demeanour in the witness box. C.V. in essence described D.K. as a self-assured young man who reassured her that a sexual encounter was no big deal and that everything would be alright. I realize that someone’s demeanour in the witness box does not tell the entire story. That said, D.K.’s evidence that he was nervous and inexperienced struck me as consistent. D.K. is, no doubt, an intelligent and self-assured young man academically and socially. I find it highly unlikely, however, that he had the kind of sexual self-confidence described by C.V. As I have noted, I think it much more likely that he was the sexually inexperienced teenager that he claimed to be in April 2013.
[41] At the end of the day, even if I were not left in a state of reasonable doubt by D.K.’s evidence, I would still not convict based on the Crown’s evidence.
(c) Am I uncertain as to which account to believe?
[42] Where a trial judge (or jury) is not entirely sure which version of events to believe, he or she must acquit: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont.C.A.); R. v. C.W.H. (1991), 68 C.C.C (3d) 146 (B.C.C.A.). It is not necessary for me to decide the point in this case.
DISPOSITION:
[43] I find D.K. not guilty.