Court File and Parties
Barrie Court File No.: CR-15-261 Date: 2017-07-28 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Festus Samuel Defendant
Counsel: Mr. D. Chronopoulos, for the Crown Ms. K. Dosanjh, for the Defendant, Festus Samuel Ms. K. Bailey, for the Co-defendant, Myus Clovis
Heard: April 3-6, 10-13, 2017 and May 2, 2017
Reasons for Judgment
Mullins J.:
[1] Mr. Samuel is charged with a sexual assault alleged to have occurred between the 21st and the 22nd day of April 2014. Counts of sexual assault against his co-accused and a joint count of administering a noxious substance were dismissed at the request of the Crown during the course of the trial as the evidence unfolded.
The Evidence
[2] As of April of 2014, the complainant was 18 years old. She lived with the M. family in Barrie. The family with whom she lived included parents, two daughters of approximately the same age as the complainant and a younger male sibling. The complainant was renting a room from the family in order to be eligible to continue her education at a local high school.
[3] As it happens, the complainant did not complete high school. She eventually attended culinary school. She has been employed from time to time as a server.
[4] Family members described the complainant as a happy go lucky, upbeat person.
[5] The complainant was a naïve consumer of alcohol, having consumed alcohol only a few times. The consumption of alcohol in the home of the family with whom she lived was, ostensibly, forbidden.
[6] On April 21, 2014, the complainant rekindled a friendship with a young woman with whom she had attended grade school. The two met that afternoon in a park not far from their respective homes. The complainant was impressed with her former friend’s professed new interest in faith. The young women were joined by Mr. Samuel and his former co-accused at about 9:00 p.m. that evening, when the men picked up the complainant and her friend, outside the home where the complainant was living at the time. Though expected to do so, the complainant did not advise the matriarch of the family that she might not return before the 11:00 p.m. household curfew.
[7] The complainant had never before met the men with whom she travelled that evening. Her friend declined to identify them by name. Her friend was romantically interested in one of the two men, Mr. Samuel.
[8] Mr. Samuel’s former co-accused was the driver of the motor vehicle in which the party travelled from Barrie to Rama and returned.
[9] The complainant drank some of the beer that was available in the vehicle in which the group travelled. She had three bottles of beer, as she recalled, while the four travelled to Rama, which took between twenty and thirty minutes. She was feeling a little tipsy upon arrival at Rama. The party stopped at a home in Rama where the accused and his former co-accused left the vehicle and returned with a plastic bottle of the type usually containing water. The complainant was given to understand that the water bottle contained vodka. It was about one third full. She had three mouthfuls from the plastic bottle and one or two more beer on the return trip.
[10] On the return trip, the party stopped on a back road. By this time the complainant was feeling ‘kind of off’. Her stomach felt a little weird and her vision was getting blurry. The experience of having blurred vision was unusual to her. She did not recall any difficulty, however, getting out of the vehicle. She identified Mr. Samuel’s former co-accused as having been the driver of the vehicle throughout the events of that evening and Mr. Samuel as the person to whom her friend was attracted.
[11] When the party stopped on the back road during the return from Rama to Barrie, the complainant seems to remember being asked if she wanted to get some air. She left the vehicle in the company of the driver, next to whom she had been seated. Her girlfriend remained in the vehicle with the other male, in the back seat. Accompanied by the driver, the complainant went to the rear of the vehicle where they had sexual intercourse while the complainant was seated on the trunk.
[12] The complainant described being uncomfortable having sex with a stranger, especially out in public. She did not say anything to the man because she did not wish to express herself. As intercourse was initiated, she describes herself as not paying attention. There was no exchange of any words.
[13] The group travelled back to her friend’s home. Going to her friend’s home was contrary to the complainant’s expectation that she was to have been returned home first. After her friend was dropped off, the complainant got back in the vehicle, now taking a seat in the back, because she did not wish to sit next to the driver.
[14] She was a little too drunk to walk home, felt the complainant, and was somewhat unaware she said, that she had even arrived at her friend’s home. By this time, she was having a more difficult time seeing things. She couldn’t really stand up, her head was hurting. On the return trip from Barrie to her friend’s house, she had one or two more beers. She revised her evidence somewhat as to the timing of her consumption of the vodka. She acknowledged being able to get in and out of the car herself.
[15] In her narrative above, which was given during examination-in-chief, the complainant said that she didn’t want to sit next to the driver on the return trip, because he had just had sex with her and she hadn’t wanted to, but she couldn’t tell him no; she just didn’t want to be near him. She didn’t say anything because she didn’t want to cause any problems, not specifically because she was afraid of being hurt, as much as she was afraid of the unknown given that her friend had declined to tell her the names of these two male friends.
[16] The next thing the complainant remembers is being back at the park where she and her friend had met earlier that day. At the park, Mr. Samuel was in the back seat with her. He turned her over and took off her shorts. She did not want him to do that. She doesn’t remember if he said anything. She said nothing, she explained, because she did not want to create a problem. She was lying face down on the back of the seat when he placed his penis inside of her. She did not want him to do that because he was a stranger and she did not wish to have sex with strangers. She made some attempts to get up from the seat, but her arms were weak and shaking and she did not feel strong enough. The other occupant of the vehicle, the driver, got out, undid his pants and, testified the complainant, shoved his dick in her mouth. She did not want him to do that. There is no evidence that any words were exchanged. The man who had been driving the car stopped his sexual activity first and then her fellow back seat passenger, Mr. Samuel, did. The group returned to her home and the complainant left the vehicle and walked inside.
[17] When further questioned while under cross-examination, the complainant agreed that during or after her sexual encounter with the driver, she felt awkward and didn’t really want to do it anymore. She was non-committal as to whether she had kissed him. She didn’t say anything. She did not push him away or otherwise indicate that she did not wish to continue. She agreed that while she has some memory of having had oral sex, she was confused about which of the two men it was with and when in the chronology of events this may have occurred.
[18] Upon arrival home, the complainant describes herself as feeling dizzy and having a headache. The young adults of the family with whom she shared the home were in the living room. The complainant fell. She wished to use the washroom and found herself unable to do so. She began kicking and screaming because she did not want anyone to touch her and wanted to go downstairs to bed. She didn’t want to be touched because she’d just had two guys have sex with her, and she didn’t want to be touched again. She remembered screaming that she had to tell her girlfriend that the man her friend loved wasn’t worth it and wasn’t good for her. She was upset because she thought her girlfriend had changed, yet if she had, how could she love someone who was going to randomly have sex with other people questioned the complainant.
[19] Over the course of the evening’s events, the complainant estimates that she may have consumed three to five bottles of Budweiser beer and the equivalent of two shots of vodka. This quantity of alcohol corresponds well to the estimates made by the toxicologist who conducted analysis of blood and urine samples taken from the complainant in the early morning hours of April 22, 2014. The effects of such consumption in a naïve consumer, were described by the expert to include euphoria, disinhibition, possibly some motor impairment and perhaps a sedative effect. Generally, the effects increase in proportion to the amount of alcohol present in the blood and are less evident in tolerant as opposed to naïve drinkers. Alcohol can, he testified, impair memory, particularly if the level is rising rapidly, but this is highly variable amongst individuals. Alcohol may impair perceptions, for example as to speed or distance.
[20] At the time the complainant was returned to her home in the company of Mr. Samuel and his former co-accused, some one and a half hours after they had departed that evening, the complainant’s condition was witnessed by the two of the young women with whom she had lived, and within a few minutes by their mother. The complainant’s voice is audible in the recording of the telephone call made by the matriarch to emergency services, shortly after the complainant’s arrival back home. As well, the complainant’s condition was observed by police officers who arrived at her home and met with her the next morning.
[21] The family members with whom the complainant lived had never previously observed the complainant to be in the condition she was upon her arrival home on the 21st of April, 2014. She was described as incoherent, screaming, raving, flailing, and largely incomprehensible.
[22] Over the course of the late hours of April 21 and the early morning hours of April 22, the complainant’s demeanor gradually became calm, but nonetheless she appeared to be in significant emotional distress throughout, to the observations of police officers.
Issues
[23] It is acknowledged that the evidence establishes that Mr. Samuel had sexual intercourse with the complainant. The issue is whether it took place with the consent of the complainant. The complainant testified that she did not wish to have sexual activity with Mr. Samuel.
[24] The Crown submits that the evidence of the complainant, generally, and specifically that she did not wish to have sexual activity with Mr. Samuel was truthful and deserving of acceptance. It would be an error to disregard the evidence of her extreme distress upon arrival home.
[25] The defence challenges the reliability of the evidence of the complainant, notably because of the changes within her evidence concerning the alleged sexual encounters with the former co-accused that same evening. As well, there were other circumstances about which the complainant was uncertain, for example as to how, or by whom her clothing was removed in the first sexual encounter and her variable accounts, as for example, where and whether there had been other stops during the travel over the course of the evening.
The Law
[26] Consent to physical contact in circumstances of a sexual nature is subjective. It is the voluntary agreement of the complainant that an accused do as he did as and when he did. The complainant must be free to agree or disagree while having knowledge of what is going to happen. (See Watt’s Manual of Criminal Jury Instructions, Second Edition)
[27] The trier of fact is called upon to reflect upon the credibility and reliability of witnesses’ evidence. At times, often in fact, this is the most important issue of all. In R. v. Norman, Finlayson J.A. offered the following commentary on reliability in the context of an appeal from a conviction for sexual assault:
The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount.
[28] In R. v. Morrissey, Doherty J.A. illustrated the relationship between credibility and reliability as follows:
When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
[29] In an academic paper, Smith J. (formerly of the Supreme Court of British Columbia) explains the underlying basis for reliability assessments:
Human beings are not only deceptive but frequently unreliable. Most often this is unintended; we make mistakes for any number of reasons. Our powers of observation and recollection are what they are: imperfect. As well, we may firmly, but wrongly, believe that something happened in a certain way because we are thinking wishfully, or because we are fearful, confused or misled.
[30] As well, Her Honour offers the following helpful description of reliability:
Reliability refers to the accuracy of the factual content of a witness’s evidence. Thus, reliability pertains to the “general integrity and intelligence of the witness, [their] powers to observe, [and their] capacity to remember”.
[31] In Sanichar, Laskin J.A. described the distinction between credibility and reliability as follows:
69 I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness' testimony. Reliability has to do with the accuracy of a witness' testimony. Many cases of mistaken identification have shown that a credible witness may give unreliable evidence.
70 The reliability of a witness' testimony is often gauged by the witness's ability to observe, recall and recount the events at issue: see R. v. C. (H.), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.), at para. 41.
72 Further, although credibility and reliability are distinct concepts, they both involve factual determinations that, as my colleague notes, attract significant deference from a reviewing court: see R. v. B. (R.W.) (2003), 174 O.A.C. 198 (Ont. C.A.), at para. 9.
[32] The Supreme Court of Canada adopted Laskin J.A.’s reasoning and restored the convictions in Sanichar. The majority held that based on Laskin J.A.’s reasons the trial judge did not err or apply wrong legal principles in assessing the reliability of the complainant’s evidence.
Analysis and Disposition
[33] In light of the above, it is clear how questions of reliability, whether derived from faulty observations, imperfect recall/memory problems, or poor communication skills, greatly impacts the trier’s duty to protect trial fairness. Some reliability problems are rooted in the personal circumstances of the witness while others are situational. A honest witness may inadvertently give erroneous testimony for any of the aforementioned reasons.
[34] I accept the Crown submission that the demeanour of the complainant while testifying warrants a finding that she was telling the truth as best she could. I accept too, that the evidence of the complainant’s demeanour when she arrived home that evening offers very compelling evidence of great distress in relation to the events of that evening. The recording is heartrending.
[35] The narrower issue, as identified by the accused, is, in my view, whether the complainant’s evidence that she did not consent at the time of the events in issue is reliable. In the particular circumstances of this case, the question here, as best I can define it, is whether the evidence is sufficient to address whether the complainant has ever been clear in her own mind whether she consented to any sexual activity, notably with the accused Mr. Samuel. In saying this, I do not wish to be taken to be thinking that anything short of a complainant’s subjective consent is essential to sexual activity, only to reflect the challenges I have in appreciating this complainant’s testimony, having seen and heard it in its entirety.
[36] The complainant is a young woman who had limited experience with alcohol. While no issue was raised as to her having been so incapacitated by alcohol or other substances during the events in question as to be capable of the giving or not of consent, the evidence establishes that her coordination was significantly affected and she felt unwell. There was expert evidence as to the effects of alcohol at the levels measured in her blood. She said that she does not, generally, have a good memory, but she was able to recount in broad strokes the events of travelling from Barrie to Rama and back. She remembered with some accuracy the rather fine detail that there was a photo of a family hanging from the rear view mirror of the white vehicle in which the party travelled that evening. Though she was not introduced by name to her company, she did learn the identity of Mr. Samuel, at least by nickname and was able to identify him and his former co-accused as the passenger and driver of the vehicle, respectively, at the trial. While she was not specifically afraid of her company she said, the complainant appears to be of such a self-effacing disposition that it is not surprising, if somewhat unusual, that she did not say anything whatsoever during her sexual encounters that evening. It is troubling, however, that her evidence within the trial evolved such that she became unsure that the sexual encounter with the former co-accused had been without her consent. Her evidence as to how she came to be re-dressed differed from previous testimony. The arrangements by which she came to be face down on the back seat of the vehicle in the second sexual encounter was absent detail and she resiled from her earlier account that the driver had simultaneously committed a second sexual assault by placing his penis in her mouth.
[37] The evidence of the complainant as to her condition when she arrived home, in great distress and in some state of intoxication, was that she did not want to be touched having had the experiences she’d had and, she intended to tell her friend that the target of her friend’s affections was having random sex and was not good for her friend. She has remained angry with what she feels was her girlfriend’s moral duplicity in associating with Mr. Samuel and his former co-accused. While the evidence as to her demeanour is corroborative to her having sustained traumatizing experiences, her actual words do afford other interpretations as to why she was so upset.
[38] An accused is entitled to the presumption of innocence throughout a trial including this reasoning. The presumption is only displaced where there is evidence that satisfies the burden of proof beyond a reasonable doubt. The evidence of the complainant that the sexual activity with Mr. Samuel was without her consent, when considered with all of the other evidence, is not sufficiently reliable to discharge this burden. It is not sufficient that Mr. Samuel be considered to be probably, or likely guilty. Accordingly he is acquitted of the offence of sexual assault.
Madam Justice A.M. Mullins
Released: July 28, 2017
Ontario Superior Court of Justice Her Majesty The Queen – and – Festus Samuel Defendant Reasons for Judgment Madam Justice A.M. Mullins
Released: July 28, 2017