Court File and Parties

Court File No.: CR17-059-0000 Date: 2017-05-29

Ontario Superior Court of Justice

Between: Her Majesty the Queen Counsel for the Crown: Mr. Michael Martin

And: C.L., Accused Counsel for the Accused: Mr. Allen Wilford

Heard: May 16, 17 & 19, 2017

Reasons for Judgment Conlan J.

I. Introduction

A Night in Wiarton

1On May 20th, 2016, in Wiarton, Ontario, there was a party at the residence of the accused, Mr. C.L.

2He lived in an apartment. The complainant, Ms. P.J., lived in another unit of the same building.

3Both are middle-aged adults. They were friends. They had known each other for about a year after P.J. moved into the building.

4P.J. is physically disabled. She has two service dogs. She uses a walking stick. She has a wheelchair, although she was not using it around the time of the alleged offence. She has a prescription for medical marihuana. Her physical ailments stem from bulging discs in her back which affect her sciatic nerve. She is a very petite woman, weighing not even 100 pounds and standing not even five feet tall.

5C.L. has no known health issues. He is of average size.

6There were several others at the party. And there were goodies to go around. Alcohol. Crack cocaine. And cigarettes, to name a few.

7P.J. was not really a drinker. In fact, C.L. had never seen her drunk before the night in question. He had never seen her use any drugs either, except for marihuana.

8Before May 20th, it was well known to C.L. that his friend, P.J., had serious issues with something that happened in her past. Some kind of abuse. In fact, he knew from her that she had not had sex with anyone for sixteen years or so. She was a very private person, withdrawn and something of a recluse.

The Night According to P.J.

9P.J. testified that she essentially blacked-out. After drinking three shots of “Fireball”, two sips of beer and a couple of drags off a pipe shared with her by the accused (believed to contain crack cocaine), her memories clouded. She remembers only bits and pieces of the rest of the soiree, including a trip to and being inside the nearby Legion.

10She remembers being in the accused’s bedroom. She had never been in there before. She was vomiting into a container. She was scarred. She was on the bed.

11She also remembers the following: a penis inside her vagina while she was lying on her back on the bed, her shirt being up or off, a “dark figure” inside the room, skin on skin contact with her chest, her not being able to push whatever was on top of her off, and her pants being on the floor.

12She next remembers being inside her own apartment. She felt horrible.

13Now being the next day, she spoke in person with the accused. She asked him what happened. He told her that they “made love”. He expressed his love for her. She rejected him. She went to the police about a month later.

14When asked whether she consented to any sexual activity with the accused, P.J. promptly answered in the negative.

15According to P.J., before May 20th, she had no intention of being romantic with C.L. He spoke about that possibility often. But she had told him repeatedly that her health issues, her past sexual abuse and her anger towards men generally meant that she was effectively done with romantic relationships.

The Night According to C.L.

16So what does C.L. have to say?

17He spoke to the police when he was arrested on June 29, 2016. During a relatively short statement, he said some important things.

18He acknowledged that, before any sexual activity occurred between him and P.J. on the night in question, she had been very sick and was lying on the bed with a pail beside her for vomit (page 2 of the transcript).

19He mentioned that, before May 20th, he and P.J. had talked about possibly getting together as a couple and moving in together to save money (page 3).

20He stated that P.J. had drank quite a bit that evening, he guessed (page 6).

21He stated that she removed her own pants (page 8).

22He acknowledged that it was not until the next day that P.J. realized what had happened (meaning the sex between her and C.L.) and then asked him about sexually transmitted diseases (page 9).

23He stated that the sex that evening was a spur of the moment thing; there was no real conversation beforehand (page 12).

24In his direct evidence at trial, the accused stated that, before May 20th, he and P.J. had talked about liking each other and possibly having a relationship. In cross-examination, however, he admitted that, for many months before May 20th, she had persistently refused his suggestions that they have a relationship; and she had also rejected his chatter about marriage; and there had never been a single instance of any form of romantic or sexual contact of any kind whatsoever between the two of them.

25In cross-examination at trial, C.L. stated that it was clear to him during the evening in question that P.J. had never drank “Fireball” before. Notwithstanding that, she consumed a two-ounce shot of “Fireball”, then another four ounces or so in a glass mixed with ginger ale, plus the crack cocaine from the pipe in the bathroom, and then a couple of sips of beer.

26Not long after sharing the pipe in the bathroom, P.J. was back inside the bathroom and obviously sick. She had been puking, remnants of the vomit on her clothing and hands clearly visible to the accused. She was asleep on the toilet. She was unconscious. He picked her up and carried her to his bed. He gave her a puke pail. She was very, very drunk.

27Partiers were leaving because the apartment smelled so foul of vomit.

28C.L. sat on the bed beside P.J. Then he lay down. At her request, he closed the door. At her request, he turned off the light. She removed her own clothing. They kissed. One thing led to another. They had sexual intercourse. She was awake. She was not unconscious. She did not resist or object. She stated that they should be together.

29Less than one hour had passed between P.J. being unconscious at the toilet and the sexual activity in the bedroom.

30C.L. testified that, before the kissing, P.J. had been on the telephone with, apparently, his daughter named A.L. He heard P.J. say on the telephone something like she tells everybody she cannot have sex but really she can. He also heard P.J. say on the telephone something to the effect that she wanted to have a relationship with C.L. but did not know how because so many persons were always around the accused and his apartment.

31After the sex, and after a trip to the local Legion, P.J. was tired and went to her own apartment.

32Beyond the next day when he gave her some crackers for her sick stomach, she basically ignored him. That was the end of any romance between them.

33What C.L. said to P.J. when he gave her the crackers the day after May 20th is uncertain, on the evidence of the accused. He testified that he told her that they made love, which would appear to be a strange thing to say to someone who was there and actively participated in the sex. In re-examination, however, C.L. testified that all that he could remember is that he told P.J. that he loved her, that he cared for her a lot, and that he would do anything for her.

The Accused’s Daughter and Her Partner

34A.L. is the accused’s daughter. She is 28 years old.

35A.L. testified that, before the night in question, P.J. had told her that she did not think that she could ever be in love with a man, and that she was afraid to have anything to do with a man, and that she could not have sex, and that she had not had sex for some sixteen years, and that she had been in an abusive relationship.

36A.L. was not at her father’s party, but she claims to have talked on the telephone that evening with P.J. P.J. first told A.L. on the telephone that she was very intoxicated and not feeling well to the extent of not being able to walk and not being able to feel parts of her body, like her arms. In a later call that same evening, P.J. professed her love for C.L. and that she wanted to be with him. Later again, P.J. stated that she was lying on the bed, naked, with C.L.

37According to A.L., it concerned her that, within 24 minutes or so, P.J. went from not being to walk or feel parts of her body due to extreme intoxication to lying naked beside C.L. But she figured that her father would take care of P.J.

38We now know, on everyone’s evidence, that in fact what occurred is that C.L. had sex with P.J.

39A.L. did not actually see P.J. and C.L. that night until sometime after 11:00 p.m. At that time, P.J. and C.L. were holding hands as they left the accused’s apartment.

40L.H. is the common law spouse of A.L. He is 47 years old. Unlike A.L., L.H. did attend the accused’s party on May 20, 2016.

41L.H. testified that, on the night in question, he was looking after P.J., after she got sick, before being relieved by the accused. The smell of vomit was “horrific”. L.H. was really concerned about P.J. He thought about the need for an ambulance. He thought that maybe P.J. had overdosed on something. P.J. certainly did not appear to L.H. to be a person about to have sex.

42Of course, we now know, on everyone’s evidence, that sex is exactly what occurred. Not with L.H., though, but with C.L. L.H. took pains in his evidence to distance himself from any notion that he would have been involved in some compromising business with any woman in the state that P.J. was in.

A Night in Wiarton – What is there to Decide?

43Did she consent? If not, did he honestly but mistakenly think that she did?

44That is all that I am called upon to figure out.

The Charge

45C.L. is charged with one count of sexual assault. The formal charge reads:

HER MAJESTY THE QUEEN PRESENTS THAT C.L., on or about the 20th day of May, 2016, at the Town of South Bruce Peninsula in the said region, did commit a sexual assault on P.J., contrary to Section 271 of the Criminal Code of Canada.

What Does the Crown have to Prove?

46For this Court to find the accused guilty of sexual assault, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that C.L. intentionally applied force to P.J.;

ii. that P.J. did not consent to the force that the accused applied;

iii. that C.L. knew that P.J. did not consent to the force that the accused applied; and

iv. that the force that was applied took place in circumstances of a sexual nature.

47If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find C.L. not guilty of sexual assault.

48The first and fourth essential elements described above are not in dispute. There is no question that C.L. and P.J. had sexual intercourse.

49The case boils down to (i) consent and (ii) honest but mistaken belief in consent.

What is the Meaning of Consent?

50Consent involves P.J.’s state of mind. It is the voluntary agreement of her that C.L. do what he did in the way in which he did it and when he did it. In other words, P.J. wanted the accused to do what he did.

51A voluntary agreement is one made by a person, who is free to agree or disagree, of her own free will. It involves knowledge of what is going to happen and a voluntary agreement to do it or let it be done.

52Just because P.J. did not resist or put up a fight does not mean that she consented to what C.L. did. Consent requires knowledge on P.J.’s part of what is going to happen and a voluntary decision by her to let it occur.

53Where, as here, there is some question about the alleged victim’s capacity to have consented to the sexual activity, the following legal principles gleaned from the leading jurisprudence are important to remember.

54First, any sexual activity with a person who is incapable of consciously evaluating whether she is consenting or not to every act during the encounter is not consensual within the meaning of the Criminal Code. R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, at paragraphs 31 and 66.

55Second, it is permissible for the trier of fact, in the absence of or in addition to direct evidence on the issue of consent, to consider what has been coined “pre-existing attitude evidence”. The following excerpt, paragraph 69, of the decision of the Court of Appeal for Ontario in R. v. Garciacruz, 2015 ONCA 27, [2015] O.J. No. 264 is instructive.

69In the absence of direct evidence on the issue of consent, a court can draw inferences from a complainant’s pre-existing attitudes and assumptions regarding the period during which she has no recollection. In appropriate cases, the court can conclude that the complainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, she clearly would have refused to consent. This type of inference would support the trial judge’s finding of that the complainant was asleep and incapable of consenting.

56If this Court has a reasonable doubt as to whether P.J. did or did not consent to the sexual activity between her and C.L., then the accused is entitled to an acquittal. There would be no need to address the issue of honest but mistaken belief in consent.

Honest but Mistaken Belief in Consent

57The issue of honest but mistaken belief in consent involves knowledge, a state of mind, C.L.’s state of mind. Crown counsel must prove beyond a reasonable doubt that C.L. knew that P.J. did not consent to the sexual activity.

58There is more than one way for Crown counsel to prove that the accused knew that P.J. did not consent to the sexual activity.

59First, that C.L. actually knew, was actually aware at the time, that P.J. did not consent.

60Second, that C.L. was aware at the time that there was a risk that P.J. was not consenting to the sex but went ahead anyway, not caring whether she consented or not. We refer to that as recklessness on the part of the accused.

61Third, that C.L. knew at the time that he should inquire whether P.J. consented to the sex but did not make the inquiry because he did not want to know the truth about whether she was consenting or not. We refer to that as wilful blindness.

II. Analysis

62This was a short trial – three days, including final submissions by counsel.

63For the prosecution, I heard from P.J. and Detective Thalen (to introduce the accused’s statement to the police, absent any voluntariness or Charter considerations).

64For the Defence, I heard from C.L., A.L. (the accused’s daughter), and L.H. (A.L.’s partner).

65The accused never expressly testified that P.J. consented to the sex, or that he thought at the time that she was consenting, but that is the clear import of his trial testimony, and thus, a modified W.(D.) instruction is warranted.

66If I believe some of C.L.’s evidence, for example, that P.J. was awake during the sexual activity, participated in it, did not object, removed her own clothing, and said that they should be together, then I must find him not guilty. Even if I do not necessarily believe that evidence of C.L., if it leaves me with a reasonable doubt on the issues of consent or honest but mistaken belief in consent, then I must acquit the accused. If I completely reject that evidence of C.L., I still must acquit him unless the rest of the evidence that I do accept convinces me of his guilt beyond a reasonable doubt.

67Generally speaking, I was most impressed with the evidence of P.J. and L.H. I was less impressed with the evidence of C.L. and A.L.

The Evidence of C.L.

68With regard to the evidence of the accused, first, it was replete with internal inconsistencies.

69For example, he testified at one point that P.J. had hanged up the telephone shortly after C.L. entered the bedroom to relieve L.H. as the caretaker for P.J., yet he also testified that P.J. remained on the telephone continuously from the time that L.H. left until the time that the accused closed the bedroom door (right before the kissing started). Those two things are totally irreconcilable.

70As another example, C.L. testified at trial that he heard P.J. state to his daughter on the telephone that evening that P.J. wanted to have a relationship with the accused but did not know how to because there were always so many persons around C.L.’s apartment, clearly crucial evidence for an accused person charged with having sex with a woman without her consent, but C.L. never mentioned a word about that during his statement to the police. A more material omission would be hard to imagine.

71Second, some of the comments made by C.L. during the course of his testimony made absolutely no sense.

72For example, when confronted in cross-examination with the bottom of page 11 of the transcript of his audio-video statement to the police, where he appears to indicate that he told his daughter that P.J. tells everybody that she cannot have sex but she can, C.L. testified that what he meant was that he heard P.J. tell his daughter on the telephone that P.J. tells everyone that she cannot have sex but really she can.

73That is preposterous, for two reasons. It is totally contrary to a plain interpretation of the words spoken by the accused to the police. Further, if in fact C.L. had heard P.J. say that to his daughter on the telephone, then the accused would have been thrilled because he would have taken that utterance by P.J. as an invitation to have sexual contact with C.L., yet the accused testified at trial that he thought nothing of the comment made by P.J. to his daughter.

74Third, C.L. always had an excuse during his evidence to try to explain the incredible.

75For example, on the issue of what he told the police at the bottom of page 11 of the transcript of his statement, C.L. testified that he sometimes changes pronouns when he speaks. Instead of saying that he heard X say something to Y, he might simply say that he said that something to Y. That is ridiculous, in my view.

76As another example, when confronted in cross-examination with his changing evidence as to how long the sequence of events took between when he was lying beside P.J. on the bed and when the kissing started, which chronology went from seconds to five minutes to three-quarters of an hour or so, C.L. testified that he essentially has his own definition of time. That is silly, in my opinion.

77As yet a further example, when confronted in cross-examination with the seeming reality that P.J. never danced at the Legion on the night in question, which appeared to that point in the trial to be contrary to the position of the Defence given the cross-examinations of P.J. and the police officer, C.L. testified that “any movement you make on a dance floor is classed as dancing”, and at one point P.J. walked across the dance floor. Again, just absurd, it seems to me.

78As a final example on this same theme, when it was pointed out to C.L. in cross-examination the irony of his testimony that, the day after the party, he told P.J. that they had made love, clearly indicative of the fact that the accused knew that the complainant seemed unaware of what occurred the night before, the accused suddenly changed his evidence and stated, in re-examination, that what he said was that he loved P.J., cared for her a lot, and would do anything for her (conveniently leaving out the remark about having told her that they had sex the night before).

79For these reasons, I find the evidence of C.L. to be generally incredible and unreliable. I do not accept his evidence as related to the issues of consent and honest but mistaken belief in consent, nor am I left with a reasonable doubt by it.

The Evidence of P.J.

80I found the complainant to be a fairly good witness. I believe her.

81The Defence disagrees with that assessment, hence, it is important to address the able submissions made by Mr. Wilford.

82It is argued by the Defence that P.J. testified, unreasonably, that she cannot dance but walks her two service dogs regularly. I do not see those two things as being necessarily incompatible. Common sense suggests that walking can be paced leisurely and distanced according to the abilities of the walker, but dancing, especially on a crowded floor, is more awkward for someone with a physical disability.

83The Defence points out that P.J. admitted in her evidence that she is known as a “psycho” by the Hanover police. It is important not to take that comment, offered up by the complainant voluntarily during her testimony, as some general pronouncement that an entire police department considers P.J. to be a person unworthy of belief. P.J. explained the context, which has absolutely nothing to do with C.L. or with P.J. as an alleged victim of a crime.

84The Defence argues that P.J. was inconsistent on whether she would have sex with anybody. I disagree. She may long for some police officer, but that is clearly a fantasy, even on the evidence of P.J. For all practical purposes, she is disinterested in men sexually.

85The Defence submits that it makes no sense that P.J. can remember little snippets like skin on skin contact during the sexual activity with C.L., yet she cannot recall major events like her clothes being removed. I disagree. It makes sense to me the way that it was described by P.J. – her memories after a certain point in the night are like still photographs and not necessarily in chronological order, indicative one would think of a person who was, at times, unconscious or barely conscious.

86Finally, the Defence argues that P.J. was an overly dramatic witness, for example, by asserting that she would never have touched C.L. on the night in question, not even to lean on him to steady herself or hold his hand while walking. I disagree. I do not think that was an exaggeration by the complainant, nor do I find it unrealistic. Yes, she was friends with the accused. She visited with him very often. But she also testified about what I perceive to be a genuine fear and distrust for men. And she was well aware that the accused was romantically interested in her. I think that her comments were simply a reflection of her desire to not lead C.L. on in any way.

The Evidence of the Collateral Defence Witnesses

87A.L., the daughter of the accused, is not an impartial witness. She is much more than just a family member of the person on trial. She is a self-proclaimed crusader who conducted her own investigation and created Exhibit 5, the list of alleged telephone calls between her and others, including P.J., on the night in question, with the sole aim of proving that the sex between her father and the complainant was consensual.

88To her credit, A.L. admitted that at trial.

89Not only was she a highly biased witness, unfortunately, her evidence suffered from direct contradictions on its most important aspect – Exhibit 5.

90She first testified that she spoke on the telephone with P.J. at 9:09 and 9:03 p.m. It was odd to give those times in reverse-chronological order, but it was obvious that A.L., while testifying, was a slave to Exhibit 5, created by her about a week after the evening in question.

91She then testified that she talked on the telephone with P.J. three, not two, times. The second call was a rather innocuous one – P.J. apologizing for being so sick and for monopolizing L.H.’s time.

92She then testified that the second call was not innocuous at all – it was probably the most important one from the perspective of A.L. and her father because it was during that call that P.J. professed her love for C.L.

93A.L.’s high degree of partiality and her sharply inconsistent testimony on the most important part of her evidence make it unsafe to place any weight on her evidence.

94L.H., on the other hand, appeared to be a refreshingly blunt, no-nonsense, plain-spoken and relatively unbiased witness.

95His evidence was as close to being unfiltered as one can get. Further, it was devoid of any internal inconsistencies and absent anything that is contrary to something else material that was stated by another witness at trial, except for A.L.

96The lone issue of potential concern about L.H.’s testimony is that he recalls three persons entering the bathroom before P.J. got sick, yet neither P.J. nor C.L. mentioned a third person. I find that immaterial. A trier of fact does not have to answer every single question that arises during a trial. With the passage of time, some things are just uncertain, especially minor items. This falls under that category.

Findings of Fact

97Up to May 20, 2016, P.J. and C.L. had been friends. It was no secret to both of them, and to others around them like A.L. and L.H., that the accused was interested romantically in P.J. but that P.J. was generally disinterested in men and in sex and certainly had expressed no desire to become involved in that way with the accused.

98C.L. had a party during the evening of May 20, 2016.

99P.J. attended that party. Unusual for her, she stayed. Even more unusual for her, she drank hard liquor, “Fireball”, and smoked some crack cocaine out of a pipe supplied to her by the accused.

100It was too much for a very small woman not used to partying. She got extremely sick. She vomited to the point of stinking-up the place. She passed out in the bathroom. She was unconscious over the toilet. She had to be carried out of the bathroom and placed on top of C.L.’s bed.

101Within a short period of time, likely less than one hour, P.J. and C.L. were having sexual intercourse.

102I doubt very much that P.J. spoke on the telephone with A.L. during that relatively brief period of time, but if she did she was extremely drunk and high and sick to her stomach at the time and, thus, does not remember it.

103Based on the evidence of L.H., I accept that there was a telephone call between A.L. and someone after L.H. left the apartment and arrived back home. I think that someone was C.L.

104During the sexual intercourse between the accused and P.J., she was not unconscious or totally asleep throughout but rather very drunk, barely conscious and blacking-out. That is why she genuinely remembers only bits and pieces of the sexual activity.

105I have no idea whether P.J. fantasized during the sex and was thinking or dreaming about being with another person, like this Hanover police officer. I make no finding of fact that she did. That was pure speculation by P.J. in her text message to L.H. (see Exhibits 1-3), and it would be the same by this Court.

106The next day, C.L. did not act like a guilty person, on that I agree with the Defence. He tried to help P.J. with her continued sickness. He informed her of what had occurred, but he expressed it in the words of a love-stricken man.

107I want to be clear that I do not think that any of this was premeditated on the part of C.L. I do not think that he set out to prey on P.J. I do not think that he was faking his love for her. But I do think that he took advantage of the situation and committed a crime.

Conclusions on the Issues of Consent and Honest but Mistaken Belief in Consent

108On the issue of consent, the prosecution relies on both paragraphs (b) and (d) of subsection 273.1(2) of the Criminal Code. Those provisions read as follows:

s. 273.1(2) - No consent is obtained, for the purposes of sections 271, 272 and 273, where

(b) the complainant is incapable of consenting to the activity;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity.

109There is no need to resort to paragraph (d). This case turns on paragraph (b).

110Given the findings of fact made above, it is clear that P.J. was incapable of validly consenting to any of the sexual activity that occurred with C.L. on the night in question.

111There was no voluntary agreement by P.J. to have sex with the accused. There was no conscious evaluation done by P.J.

112This is a woman who had vomit on her, a puke pail beside her, and a constant caretaker next to her on the bed. This is a woman who had been totally unconscious on the toilet not long before and who, prior to May 20th, had consistently rejected the accused’s overtures to becoming romantic due to her abusive past and her celibacy for a very long time.

113Not only do I accept the evidence of P.J. that she did not consent to any sexual activity between her and C.L., there is no doubt in my mind that, if P.J. had her wits about her during the evening on May 20th, she never would have engaged in any sexual activity with C.L.

114As for the defence of honest but mistaken belief in consent, there is no air of reality to it.

115I accept the evidence of L.H. that P.J. was a violently ill woman. So much so that he was concerned about a potential overdose and the need for an ambulance. She appeared to him to be about the furthest thing from someone about to have sexual intercourse.

116It was obvious to L.H., was or ought to have been obvious to C.L., and would have been clearly evident to anyone in C.L.’s position, that there was a serious risk that P.J. was incapable of consenting to any sexual activity because of her extreme level of intoxication by alcohol and drugs and her passing out. The accused was reckless.

117He was also wilfully blind to the situation. He ought to have, at the very least, engaged the woman that he had recently carried from the bathroom in an unconscious state in some conversation in order to satisfy himself that her condition had markedly improved. Instead, even on the accused’s evidence, virtually nothing of any substance was discussed between them before the sexual intercourse occurred.

118On both bases, recklessness and wilful blindness, the defence of honest but mistaken belief in consent fails.

119I am satisfied that the Crown has proven beyond a reasonable doubt that (i) P.J. did not consent to the sex, and that (ii) C.L. knew, through recklessness and wilful blindness, that she did not consent.

III. Conclusion

120For the above reasons, I find C.L. guilty of sexual assault.

Conlan J.