CITATION: R. v. Trumpa, 2017 ONSC 4122

COURT FILE NO.: CR-15-10000610-0000

DATE: 20170705

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRANDON TRUMPA

Danielle Carbonneau, for the Crown

Peter DeJulio, for Mr. Trumpa

HEARD: June 26, 27, 28, & 29, 2017

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of any witness under the age of eighteen years and any information that could disclose such identity shall not be published in any document or broadcast in any way.

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

BACKGROUND

[1] On July 18, 2014, the complainant, N.H., and the accused, Mr. Trumpa, were strangers to each other. The exact circumstances under which they met is unknown. According to Mr. Trumpa they met while N.H. was sitting on the steps of a church in the Bloor West Village. It was late at night. He testified that they had a consensual sexual encounter. It went wrong when she started yelling “rape”, seemingly out of the blue.

[2] N.H. has no memory of how they met. She had been drinking with her friends and then somehow got on the subway by herself. She ended up in a strange area. She was supposed to be meeting her friends at a dance club. Her only memory is that Mr. Trumpa was sexually assaulting her in a park. She got away from him and sat down in the middle of the road. She called 911. She was sobbing and almost incomprehensible to the 911 operator. The police and an ambulance came. Mr. Trumpa eventually made his presence in the park known to the police. He was arrested and charged with one count of sexual assault and one count of choking.

[3] In dealing with this case I will first set out the issues to be decided. I will then set out the elements of the offences that the Crown must prove beyond a reasonable doubt. I will then analyze the evidence in relation to those issues.

[4] I find that Mr. Trumpa’s evidence of the encounter is not believable. It does not leave me in a state of reasonable doubt. I do believe the Crown witnesses, especially the complainant N.H. For the reasons that I will set out in more detail, I am satisfied beyond a reasonable doubt that Mr. Trumpa sexually assaulted N.H. and choked her.

[5] I turn first to the elements of the offence that the Crown must prove and the issues raised.

ISSUES:

[6] The Crown must prove the following elements of the offence of sexual assault beyond a reasonable doubt:

• That there was sexual touching;

• That the complainant did not have the capacity to consent; and,

• That the complainant did not consent;

[7] Since Mr. Trumpa testified, I must determine whether I believe his evidence. If I believe him, or I am left in a state of reasonable doubt by his evidence, then I must acquit. Even if I do not accept his evidence and I am not left in reasonable doubt by it, I must still determine whether I am satisfied of guilty beyond a reasonable doubt on the evidence that I do accept. See: R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

[8] Code J.’s approach to the W.D. analysis in R. v. Thomas, 2012 ONSC 6653 at paras. 22-24 was this: a trier of fact has three possible conclusions in a case of this nature: complete acceptance of the accused’s exculpatory account; complete acceptance of the Crown’s inculpatory account; or, uncertainty about which account to believe. In this case, I do not accept Mr. Trumpa’s account and I am not left in a state of reasonable doubt by it. I completely accept the account of the Crown witnesses. I am not left with any uncertainty about who to believe.

[9] There is no question that sexual activity occurred here. As well, Mr. DeJulio conceded that the choking count must stand or fall with the sexual assault count. Thus, these are the live issues:

• Was N.H. capable of consenting to sex?

• Did N.H. consent to sex?

• Did Mr. Trumpa honestly believe that N.H. consented to sexual activity?

[10] I now turn to the analysis of the issues.

ANALYSIS:

(a) Was N.H. capable of consenting to sex?

[11] Mr. DeJulio argued that N.H. may have been drunk, but she was capable of consent. Her memory may have been affected, but she was not that drunk. He noted that many people make errors while texting, and this is a case that is no different. She was able to walk, and her disorientation can be explained by her poor sense of direction.

[12] I respectfully disagree. I find beyond a reasonable doubt that N.H. was not capable of consenting to sexual activity.

[13] Section 273.1(1) of the Criminal Code defines “consent”. Consent means “the voluntary agreement of the complainant to engage in the sexual activity in question.” Section 273.1(2)(b) notes that no consent is obtained where the complainant is incapable of consenting to sexual activity.

[14] The relevant inquiry is whether N.H. “lacked the minimal capacity to consent or withhold her consent to sexual activity”: R. v. J.W.M., [2004] O.J. No. 1295 (Sup.Ct.); R. v. Jensen (1996), 1996 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont.C.A.); R. v. J.A., 2011 SCC 28.

[15] I turn to the evidence on this point.

[16] On Friday, July 18 2014 N.H. was 19. She was working at a private airport in Fort McMurray, Alberta for the summer. The job involved spending time in Alberta, with leave in Toronto. She had arrived in Toronto early in the morning, slept, and then spent time with a friend.

[17] N.H. and her friends got together at her house from around 8 pm to approximately 10:45 pm. They were going to “pre”. To “pre” refers to drinking before heading to a bar or club in order to save money by ordering fewer expensive drinks. The plan was to “pre”, get ready, and then go to Danscape, a club in the Annex area of downtown Toronto.

[18] N.H. was drinking. She testified that she drank 6 one-ounce shots of vodka mixed with a blue raspberry drink. She had not been drinking that much in the previous year due to medical reasons. N.H.’s friend Ms. H. said that N.H. drank most of a bottle of vodka and some wine. I find as a fact that N.H. drank more than the 6 ounces of vodka that she remembered, that her tolerance was low, and that she was drunk when she left the house that evening.

[19] N.H. remembered leaving the house that evening to go to the subway. She lived 5-7 minutes away from the Royal York subway station. At 23:07:30 N.H. was at the ticket booth. Two minutes later she went down the stairs towards the platform. At 23:13:44 she boarded an eastbound train. N.H. testified that she had no memory of being in the subway station or on the subway. Her next memory was being in a park being sexually assaulted.

[20] There were multiple text messages that evening between Ms. H. and N.H. Crown Counsel, Ms. Carbonneau, did not rely on the text messages for the truth of their contents, or as prior consistent statements. They can, however, be used for the fact that the texts were made. They can be used for demeanour purposes. The texts can also be used as evidence of intoxication or lack of intoxication. I find that many of the texts from N.H. are garbled, spelled incorrectly, and make no sense. In my view, the texts indicate that N.H. was in fact significantly intoxicated. I appreciate Mr. DeJulio’s point that many people make errors when texting. No doubt that is true, but these were significant errors. Some of the texts are not intelligible. Moreover, the garbled texts must not be seen in isolation. They must be evaluated in the context of the other evidence that points to intoxication.

[21] I accept that N.H. has no memory of the events leading up to the assault. It is clear from the garbled nature of the texts that she was drunk. It is also clear from the TTC video that she was swaying while she texted. Moreover, her shoe came undone and she did not do it up, at least on video. I infer that she was impaired and either could not or did not think to do up her shoe again.

[22] I also accept that she has no memory that evening because of the location of the assault. N.H. was supposed to get on the Bloor-Danforth line of the subway at Royal York. She did. She was supposed to get off the subway at Bathurst. She did not. Instead, she appears to have exited either at Runnymede or Jane. Both stations are between Royal York and Bathurst. She testified that she did not know the Bloor West Village area very well. I find that she was completely confused because of impairment due to alcohol. I am aware that she was not that familiar with the subway system, and that she had a poor sense of direction. There was no possible reason for her to get off at Runnymede or Jane, however, unless she was completely confused. Furthermore, Ms. H., her friend, testified that N.H. had experienced memory loss from alcohol before. I find that she has real memory loss from that evening. I also find that N.H. did not have the capacity to consent to sexual activity due to alcohol impairment.

[23] I also find that even if N.H. became capable of consenting to sex when she “woke up” during the sexual activity, then that consent was either not given or revoked, as I will develop in the next portion of these reasons.

[24] Mr. Trumpa testified that N.H. seemed alright to him. He testified that she had normal conversation with him and there were no signs of intoxication. He did not smell alcohol on her.

[25] For reasons that I will deal with in more detail in the next part of this judgment, I do not believe Mr. Trumpa and his evidence does not leave me with a reasonable doubt. I find that he could not possibly have failed to notice her disorientation. She was in an area completely unfamiliar to her and yet, according to Mr. Trumpa, she never mentioned that she was lost or did not know where she was. Physically, it is apparent from the TTC video that she was having some problems with her gross motor skills. She may have been able to walk and talk, but there were enough warning signs that Mr. Trumpa should have at least made inquiries about her capacity. He made none.

[26] His comments on the police car video are instructive. He agreed that he said that she “must have been passed out”. He denied in cross-examination that the comments were about the level of alcohol she consumed. He testified that he was observing that she must have passed out from the exhaustion of yelling. I do not accept that evidence. It is a matter of common human experience that people often associate the word “passed out” with drinking. I find that is what happened here.

[27] I now turn to the question of consent.

(b) Did N.H. consent to sex?

Position of the Accused

[28] Mr. DeJulio does not take the position that N.H. was lying. He agreed that she truly and honestly believed that she did not consent. He argued, however, that after engaging in sex with a stranger she somehow convinced herself that she did not consent. It may well be that once the acts were completed it dawned on her that she had only just met someone and had sex with him. Mr. DeJulio concedes that is, to some degree, conjecture. He notes that N.H. had no markings or bruises consistent with her account of being choked. She also had no abrasions consistent with having sex on a rough picnic table.

[29] I agree with the Crown that this submission comes dangerously close to the “rape myth” that social pressure forced N.H. into crying “rape” rather than incur opprobrium by admitting to sexual relations with a stranger. When I queried Mr. DeJulio, he was careful to stipulate that he was not advancing a “rape myth”. I accept that he was not doing so. He was suggesting, rather, that the facts simply did not support the notion that N.H. had not consented.

[30] With respect, I cannot accept this submission. I find that there is simply no evidence to support it. The evidence is that N.H. remembers having sex and crying. That means that at some point during the sexual activity she became sufficiently aware to become capable of consent. That is when she expressed that she did not consent – or, if she somehow communicated consent to sex during the period she was incapable, she clearly and unreservedly revoked that consent.

[31] Since N.H. was incapable of consenting to sexual activity, she could not have consented to sexual activity. That is enough to dispose of this issue. For the sake of completeness, however, I will examine whether N.H. did, in fact consent at any time.

Evidence of N.H.

[32] N.H. testified as to her memory of the assault. She was on a picnic table. She testified that she was looking down crying really hard. She was with Mr. Trumpa. She did not know him. He was smiling and laughing. He said “isn’t this what you wanted?” She said “no”. He then pushed her on the table and sexually assaulted her. She testified that she did not want to have sex with him and she did not consent to sex with him.

[33] N.H. testified that she had her skirt and top on but she was not sure about her shorts. She had been wearing purple Nike shorts but they were off during the assault. She was not sure how they came off.

[34] N.H. testified that she tried to push Mr. Trumpa back but he told her to “fucking put your arms down”. He then pushed her neck and started choking her. He put her arms down and held her for 10 seconds. She stopped pushing him back as she was scared. It affected her ability to breathe. He did this 4-5 times. He said: “shut the fuck up” a lot to her and “put your hands down on the fucking table” and “you should be happy this is happening”. She testified that she told him to stop.

[35] N.H. further testified that in between the assaults he would sit back on the table and assault her again when she stopped crying. He also forced his penis into her mouth. He would hold it until she started coughing and choking. He would tell her to “shut the fuck up” while that was happening. She believed he did not wear a condom because he later said “you’re going to have my fucking children because I didn’t wear a condom.” She did not know if he ejaculated.

[36] After several sexual assaults N.H. ran to the road and sat down. She pulled out her phone and called 911. She could not see Mr. Trumpa at that point but she could hear him yelling. She testified that he was saying that she deserved what happened, that everything she said was a lie, and that nobody was going to believe her. It was at that point Mr. Trumpa yelled that she would have his children. A woman came with a flashlight. She began looking for and calling to Mr. Trumpa.

N.H.’s Call to 911

[37] I will deal next with N.H.’s call to 911. Ms. Carbonneau relied on the 911call for:

• The demeanour of N.H.;

• The timing of the call;

• The evidence of the accused yelling in the background; and

• The fact that there was a conversation with another Crown witness.

[38] Ms. Carbonneau did not rely on the call for the truth of its contents, although there is certainly support for the notion that it could have been admitted as a spontaneous utterance. See, for example, Watt’s Manual of Criminal Evidence at §27.09. See also R. v. Dakin (1995), 80 O.A.C. 944; R. v. DeSouza, 2012 ONSC 210. Since Ms. Carbonneau did not rely on the spontaneous utterance exception to the hearsay rule, Mr DeJulio did not respond to it and it would be unfair for me to use it for the truth of its contents.

[39] Listening to the 911 call it is impossible not to conclude that N.H. has the mental state and the demeanour of someone who has been subject to a highly traumatic event. The call is extremely disturbing. She is utterly hysterical. She is clearly terrified. Mr. Trumpa can be heard in the background yelling. It is also impossible not to conclude that N.H. is terrified of him. A sexual assault complainant is never obliged to offer resistance and lack of resistance is not to be equated with consent. On the other hand, as Hill J. observed in R. v. Mete, [1998] O.J. No. 16 (Gen.Div.) “the demeanour of a complainant of sexual abuse, shortly following the alleged offence, may hold probative value as to the likelihood of the event occurring as described by the complainant.” The demeanour of N.H. on the 911 tape clearly falls into that category.

Evidence of Carolle Bright

[40] Carolle Bright also testified. She lives close to the Willard Gardens Parkette. She testified that around 2:45 am on July 19 she was woken up by what she called “an explosion of anger and shouting” from the direction of the Parkette. She heard someone yelling “you fucking bitch you fucking bitch oh” several times. She didn’t hear an answer back. She grabbed her flashlight and her cell phone to call 911. He saw N.H. sitting on Willard Gardens. She was on the street sitting cross-legged and in the middle of the road. She had her cell phone in her left hand. Ms. Bright could not hear her talking. She looked up to where Mr. Trumpa was shouting. She never saw him but she could hear him. She walked up to N.H. and put her hand on her shoulder. N.H. was crying and seemed to be on her phone. Ms. Bright called 911. She had to dial three times because she was shaking. All the while she could hear Mr. Trumpa shouting. Indeed, Mr. Trumpa can also be heard in the background of Ms. Bright’s 911 call. She rushed around the parkette looking for Mr. Trumpa but she never saw him. She heard him shout: “you fucking bitch sitting in the middle of the road”. She then went back to N.H. Eventually the police and the ambulance arrived. She saw what she assumed was a tracking dog looking for Mr. Trumpa. She gave a statement to a police officer. The next time she saw N.H. was at the police station the next morning. Ms. Bright wanted to go back in order to make some changes and corrections to her original statement.

The Text Messages

[41] Ms. Carbonneau also relied on the text messages for timing and demeanour. At 12:01 am (it was now July 19). N.H. texted Ms. H. in response to HELLO. She said “hi”. Ms. H. sent several more texts. N.H. texted “hi” again at 12:12 am. There were multiple other texts from N.H. up to 12:58 am, when N.H. texted “Pls help me”. Some of these other texts made no sense and were garbled. She continued to text asking for help. At 1:58 am she texted “help me please” and “this guy won’t let me ho”. At 2:41 am she texted “Hi I’m going to the hospital”. N.H. called 911 at 2:18:04. Ms. Bright called 911 at 2:23:28. Ms. Carbonneau argues that the sexual assault took place between 12:58 am and 2:18 am. This seems reasonable to me.

Evaluation of N.H.’s Testimony

[42] There are certainly problems with N.H.’s testimony. It was unclear what happened to her shorts. It is also unclear how she was able to retain her phone and use it to call 911. I note that on the TTC video N.H.’s purse was worn over her shoulder, meaning that she did not have to hold on to it with her hands. It is also problematic that Mr. Trumpa, who seemed violent and was having outbursts, made no attempt to stop N.H. from using her phone or calling 911. At the end of the day, I do not need to resolve these issues. I need only determine whether these unresolved issues leave me in a state of reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 6, 8. They do not.

[43] I found N.H. to be a credible witness and I believe her. I believe her for several reasons. Although I do not rely on the 911 call for the truth of the contents, the call clearly indicates that she had a state of mind consistent with a traumatic event: as mentioned, she is terrified and hysterical. I do not accept the submission that there is significance to the fact that N.H. was uninjured physically from the assault and that there were no marks on her neck consistent with choking. Nothing can be taken from those facts. Mr. Trumpa was obviously considerably stronger than the more diminutive N.H. He may well have been able to hold her in place without leaving marks or bruises. Undoubtedly some physical assaults leave a mark and some do not.

Evidence of Mr. Trumpa

[44] In contrast, I do not believe Mr. Trumpa and his evidence does not leave me in a state of reasonable doubt about whether N.H. consented. In saying this, I wish to be clear that a criminal trial is not a credibility contest. I am not simply saying that I don’t believe Mr. Trumpa because I believe N.H. Mr. Trumpa’s evidence is simply not credible.

[45] Mr. Trumpa testified that on the evening of Friday, July 18 he left work and proceeded to Bloor Street West. He bought three tallboy beers and drank them throughout the course of the evening. He had a McDonalds hamburger and fries. He went to a bar and had another beer. He estimated that throughout the evening he had the equivalent of 7 beers. He testified that he was not drunk. He said he was relaxed.

[46] When he first saw N.H. he called out to see if he or she was alright. She said “I’m fine”. He asked if she needed a taxi but she said “no”. She was friendly and invited him to sit with her. The made small talk. She indicated that she was supposed to go to a party with her friends but then said she wasn’t going and became emotional. They talked about hanging out at some point. She took his hand. At about 12:45 am he said that he wanted to go home and offered to call her a taxi or walk her to a subway station. She then said that she didn’t want to go home just yet.

[47] Mr. Trumpa stated that they then started making out. Eventually they started walking again. They ended up at Willard Gardens Parkette. He didn’t know it. They sat on a picnic table. The started making out again. She eventually took his penis in her hands and then performed oral sex. He performed oral sex on her. He asked her if she wanted to have sex. She did. They had consensual sex although he had difficulty maintaining his erection so she performed oral sex on him again. Mr. Trumpa also testified that while they were having sex N.H.’s phone rang at least twice. He could hear it vibrating.

[48] Eventually they stopped having sex. N.H. began looking for her phone. Mr. Trumpa found it. She started looking at the text messages and became emotional. She began to cry. She said: “I’ll be right back” and walked 50 or 60 feet away. He just sat there on the bench then he heard her yell really loudly “rape”. She yelled it at the top of her lungs. He had no idea why she was yelling.

[49] Mr. Trumpa testified that he panicked and freaked out. He said “why are you yelling” and then “be quiet” and then “shut up”. He agrees that he started calling her a “fucking bitch”. He did not run away. He saw Ms. Bright. He also saw a police car. He panicked. He dropped to the ground and hid under a bush. He eventually heard two police officers discussing whether to rope off the park. He said “no, don’t rope off the park” and made the officers aware that he was present. He was taken into custody and transported to the station.

Evaluation of Mr. Trumpa’s Evidence

[50] There were significant problems with Mr. Trumpa’s credibility. I found the evidence of Ms. Bright that she was woken by an “explosion of anger” from the park very telling. That explosion of anger came from Mr. Trumpa. It did not stop throughout the entire encounter. I do not accept that he became angry when N.H. called 911 and said that she had been raped. She was on the road at that point and he was still in the park. She was already sobbing and hysterical when she called 911 at 2:18 am. Whatever had happened to make her terrified and hysterical when she made the call occurred before 2:18 am. She did not simply become emotional and walk away because she saw a text, as Mr. Trumpa testified. His anger, as heard by N.H. and Ms. Bright and caught by the 911 calls, was not consistent with outrage about a false claim of rape. I find, instead, that it was consistent with a forced sexual encounter where the perpetrator angrily told the victim to “put your fucking hands down” and “shut the fuck up” when she pushed back or communicated a lack of consent.

[51] Moreover, Mr. Trumpa’s evidence that he only started yelling after N.H. began yelling “rape” is directly contradicted by Ms. Bright, an independent witness. She was awoken by his anger. She heard him shouting. She did not hear a woman shouting or yelling. He can be heard shouting in the background of both 911 calls. He is clearly angry although it is not possible to make out the exact words he is using.

[52] There were other problems with Mr. Trumpa’s credibility. It seems highly unlikely that Mr. Trumpa simply saw someone sitting on church steps and called out to see if she was okay. She was not in obvious distress. He did not even know, he testified, whether the person was male or female at that point. He didn’t seem to feel the same need to check on other people during course of the evening. I find that it is much more likely that he saw a young woman sitting alone and decided to see if she would talk to him. That is an everyday encounter and not suspicious in and of itself. What impacts on his credibility is his refusal to admit that.

[53] Mr. Trumpa testified that N.H. told him she was 28. He said that he believed her because she was wearing “heels and clubbing clothes and makeup”. In fact, that was not correct – she was wearing flat shoes and casual clothes. Mr. Trumpa offered to call N.H. a taxi. It was unclear how he would do that when he didn’t have a phone.

[54] Mr. Trumpa testified that he had never been to Willard Gardens Parkette. He said he did not know where it was. I find that was a lie. He was far more familiar with Bloor West Village area than N.H. He walked to his grandmother’s place from Bloor Street numerous times. I find that he did know the park. I also find that he knew it to be a secluded spot where he could have sex. In contrast, I accept N.H.’s evidence that she did not know the park.

[55] Mr. DeJulio argued that Mr. Trumpa gave himself up and approached the police. That, he said, showed that he had nothing to hide. It went to his state of mind.

[56] Again, I respectfully do not accept that argument. The time to have explained things to the police was when they first arrived, if he wanted to make that point. I understand Mr. Trumpa’s explanation that he panicked at first and that he was frightened of an encounter with the police. He said he had never been in trouble before. He also said that as a young black man he had had negative experiences with the Peel Regional Police. I accept that a young black man could indeed fear an encounter with the police. Interestingly, however, he contradicted himself on that point. He said several times that he wanted to talk to the police. His explanation was that he wanted to talk to a detective. That showed some sophistication in dealing with the police.

[57] Notwithstanding those points, I find that he gave himself up simply because at that point it was obvious that the police would have found him. That is the only logical explanation for why he gave himself up so quickly.

[58] Moreover, Mr. Trumpa was simply acting very strangely when he encountered the police. I find that he was likely influenced by alcohol, notwithstanding that he testified that he was not drunk. Constable Ashkar testified that Mr. Trumpa was argumentative and uncooperative when he was arrested. In the police car video, he continually talked. He agreed that he made comments about N.H. that are captured on the video. He said that the encounter was “love, it was passionate”. He also asked the officer, “what would you do?”

[59] Whatever Mr. Trumpa was doing in the police car when he was arrested, he was not trying to explain his side of the story. I want to emphasise that Mr. Trumpa was under no obligation to explain anything to the police. He had the right to silence. I only make that point because it is relevant to his credibility at this trial.

[60] I now turn to the question of whether Mr. Trumpa honestly but mistakenly believed that N.H. consented to sexual activity.

(c) Did Mr. Trumpa honestly but mistakenly believe that N.H. consented to sexual activity?

[61] Mr. DeJulio did not press this issue with any great force. The main point of his submissions was that N.H. consented to sex and was capable of consent. I mention the issue simply to say that I find that Mr. Trumpa did not honestly believe that N.H. was either capable of consent or did consent. In my view, the Crown proved beyond a reasonable doubt that Mr. Trumpa did not honestly but mistakenly believe that N.H. consented to sexual activity.

DISPOSITION

[62] I find Mr. Trumpa guilty of both charges.

R.F. Goldstein J.

Released: July 5, 2017

CITATION: R. v. Trumpa, 2017 ONSC 4122

COURT FILE NO.: CR-15-10000610-0000

DATE: 20170705

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRANDON TRUMPA

REASONS FOR JUDGMENT

R.F. Goldstein J.