Court File and Parties

COURT FILE NO.: CR-16-0000131-00MO DATE: 20170809 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LESLIE NYZNIK, SAMEER KARA and JOSHUA CABERO Defendants

Counsel: Philip Perlmutter, Thaddeus Ofiara and Mabel Lai, for the Crown Harry Black and Joanne Mulcahy, for the Defendant Leslie Nyznik Alan D. Gold and Melissa Austen, for the Defendant Sameer Kara Patrick Ducharme, for the Defendant Joshua Cabero

HEARD: June 15, 2017

MOLLOY J.:

REASONS FOR DECISION (Admissibility of Evidence)

Introduction

[1] Leslie Nyznik, Sameer Kara and Joshua Cabero are charged with sexual assault. They elected to be tried by a judge without a jury.

[2] The complainant, (“AB”), [1] alleges that all three of the defendants engaged in various sexual acts with her in a hotel room after a night of bar-hopping. It is not disputed that these sexual acts took place. The complainant testified that she did not consent to any of the sexual acts carried out by the three defendants. The defence maintains that AB was fully conscious and capable at all times, that she freely consented to all of the sexual contact between them, and that she initiated much of it. In her evidence at trial, the complainant testified that at the time of these acts, she was unable to move her limbs, unable to speak and unable to see. She could hear what was happening and also had sensory perception. However, she was too incapacitated to do anything to stop what the defendants were doing to her. The complainant ultimately lost consciousness. When she came to, the three men were asleep. She found her clothes, got dressed and left without waking them. The complainant testified that there are blocks of time both before and after the events in the hotel room for which she has no memory whatsoever.

[3] In her evidence at trial, the complainant testified that she had consumed eight alcoholic drinks between 8:45 p.m. and about 1:00 a.m. She said she had no alcohol before arriving at the first bar and no alcohol after arriving at the hotel. The Crown tendered evidence of an expert toxicologist, Betty Chow, as to the complainant’s likely blood/alcohol level at various points, based on her height and weight, and her evidence as to the alcohol she had consumed.

[4] The defence accepted Ms. Chow’s expertise to provide opinion evidence on the likely concentrations of alcohol in AB’s blood and the effect of alcohol and drugs on the functioning of the human body. The defence also raised no objection to the admissibility of such evidence.

[5] The Crown also sought to introduce opinion evidence from Ms. Chow as to the effects of various drugs on the body, notably drugs often associated with “date rape,” and whether such drugs could be consistent with some of the symptoms described by the complainant. While recognizing the credentials of Ms. Chow as an expert in this field, the defence objected to the admissibility of her evidence on this issue.

[6] I ruled that the evidence was admissible, indicating that written reasons would follow.

The Defence Position

[7] The defence argued that the expert evidence about the effect of drugs should not be admitted because the defendants were charged only with sexual assault, and not with administering a noxious substance. Further, there was no evidence that anybody had given AB any kind of drug.

[8] In addition, the defence submitted that it was unfair to admit the evidence because of late disclosure of evidence about when a drug could possibly have been put in AB’s drink. From the evidence of AB, there were only two drinks that could have been tampered with without her knowledge: (1) a vodka and cranberry juice which she testified had been poured for her by an unknown person from an open bottle of vodka on the table and which she did not see being poured; and (2) a vodka and cranberry delivered to her by a waitress at the Brass Rail, after that waitress had a conversation with Mr. Nyznik. Prior to her evidence at trial, AB had stated numerous times that she had seven drinks over the course of the night. The first time she ever mentioned an eighth drink was in her evidence-in-chief at trial when she said she remembered having an additional vodka and cranberry juice at Pravda Vodka Bar. Similarly, in her prior statements to the police and to the Crown, AB had not mentioned having noticed that Mr. Nyznik was away from the table when the drinks were ordered and that when the waitress arrived with the drinks, he had a conversation with the waitress that was clearly a continuation of an earlier discussion. The defence had not heard anything about this until AB was examined-in-chief at trial.

Analysis

[9] The defence had early and extensive disclosure of the expert opinion of Ms. Chow about the properties and effects of various drugs. There was nothing about her proposed evidence that came as a surprise to the defence.

[10] There were aspects of the testimony of the complainant that were a surprise to the defence, including the extra drink at Pravda and the alleged discussion between Mr. Nyznik and the waitress before the waitress delivered AB’s drink at the Brass Rail. However, the Crown did not breach its duty to make disclosure of relevant evidence. This new information provided by AB at trial was as much a surprise to the Crown as it was to the defence. Because the defence was not previously aware of this (and other) evidence given by AB, I gave the defence an adjournment to provide additional preparation time before they were required to cross-examine AB, an adjournment that was readily consented to by the Crown. In my view, that adequately addressed any disadvantage caused by the unexpected new evidence. AB’s failure to disclose some of this evidence earlier is a factor that may affect the weight to be given to that evidence. However, it does not render inadmissible an expert opinion that would otherwise be admissible.

[11] The Crown has no hard evidence that AB was in fact administered a drug of some sort, whether for the purpose of facilitating a sexual assault or for any other purpose. By the time AB went to a hospital, traces of any such drugs would no longer have been in her system. Blood tests and urinalysis that were negative for such drugs are therefore of no assistance one way or the other. The defendants were not charged with administering a noxious substance because there is no evidence that they did so, or that they knew somebody else had done so. Further, many people would have had access to AB’s drinks, not just the defendants. Therefore, the defendants are charged solely with sexual assault.

[12] The sole issue in this case is consent. AB did not allege that she struggled and fought and said “No” to the defendants. She testified that she was so incapacitated that she was unable to move or speak. The position of the Crown is that AB’s condition would have been obvious to the defendants. They knew she was incapable of consenting to sexual activity, and they went ahead anyway, taking advantage of her condition. In order to establish the lack of consent, there is no obligation on the Crown to prove by what means the complainant had become incapacitated. Since the charge is not particularized in this manner, the nature of the stupefying substance is not an essential element of the offence. It is open to the trial judge to infer from the circumstantial evidence that a stupefying drug was administered without knowing precisely what that drug was. [2]

[13] Indeed, even if the defendants had actually been charged with administering a stupefying drug, the Crown would not be required to prove the exact nature of the drug. [3] In coming to a conclusion on the issue of consent, it is open to the trial judge to consider the evidence of the complainant as to her symptoms together with the expert evidence of a toxicologist as to whether those symptoms could be explained by the administration of a “date rape” type drug. The evidence of the toxicologist is relevant for that purpose, even where the nature of the drug and how it might have been administered are unknown. As stated by Watt J.A. in Vant (at para. 93):

. . . the evidence of the toxicologist was relevant, material and admissible. It was not rendered irrelevant, immaterial or inadmissible because the expert described the reported symptoms as “consistent with” a CNS depressant like GHB or because the expert could not identify the drug or dosage involved.

[14] After hearing all of the evidence in this case, I will be required to make a determination as to whether the Crown has proven beyond a reasonable doubt that AB did not consent to the sexual contact with the three defendants. In coming to that conclusion, I will have AB’s direct evidence as to what she experienced and the condition she was in. It will also be relevant to take into account whether such symptoms are consistent with the alcohol she consumed, or with the possibility of her being given some type of drug without her knowledge, or with some combination of drugs and alcohol. Expert opinion evidence will not be conclusive of these issues, because there is no direct evidence of a drug being administered. However, it is relevant to the assessment of whether the symptoms are at least consistent with such a scenario. Each piece of evidence in a case does not need to be determinative in order to be relevant and admissible. If the evidence assists in the analysis the trier of fact is required to undertake, then it is relevant.

[15] The objections raised by the defence in this case go more to the weight to be given to the evidence, rather than its relevance.

Conclusion

[16] The expert evidence as to the impact of these types of drugs and whether they would be consistent with the symptoms described by the complainant is relevant and admissible.

MOLLOY J. Released: August 9, 2017

Footnotes

[1] I issued an order at the beginning of this trial prohibiting the publication of the name of the complainant or any information that would tend to identify her. I have identified her in this decision as “AB.” Those are not her actual initials.

[2] R. v. Bell, 2007 ONCA 320, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 351.

[3] R. v. Vant, 2015 ONCA 481