COURT FILE NO.: CR-15-10000518-0000 DATE: 20170109 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JONATHAN VASQUEZ CLASE Defendant
COUNSEL: S. Fericean, for the Crown J. Lopez, for the Defendant
HEARD: November 21, 22, 24, 25 and 29, 2016
Reasons for Judgment
B. P. O’Marra, J.
[1] The accused re-elected trial by a judge alone and pleaded not guilty to the following two counts:
(1) Jonathan Vasquez Clase stands charged that he, on or about the 16th day of June in the year 2014, at the City of Toronto, in the Toronto Region, with intent to assist himself to commit the indictable offence of sexual assault, did attempt to choke M.G. by applying pressure on her neck, contrary to s. 246(a) of the Criminal Code.
(2) Jonathan Vasquez Clase stands further charged that he, on or about the 16th day of June in the year 2014, at the City of Toronto, in the Toronto Region, did commit a sexual assault on M.G., contrary to s. 271 of the Criminal Code.
Overview
[2] The complainant, M.G., is now twenty-four years old. She alleges that in the early morning hours of June 16, 2014, the accused forced sexual intercourse on her and choked her as he did so. The accused testified that they did have sexual intercourse but it was consensual. He also denied choking or hurting her in any other way. The accused was interviewed by police on June 20, 2014. His statement was exculpatory. It was also untrue. He told them that he had been with M.G. at the relevant time but did not touch her. At trial he explained why he lied to the police. The defence specifically admitted that the police interview of the accused was voluntary and no Charter issues were raised to challenge its admissibility.
[3] This case essentially falls to be decided based on credibility findings. Other witnesses testified but none of them claim to have observed the sexual interaction between the accused and M.G. An important witness was deported before this trial. His out-of-court video statement to the police on June 24, 2014 was filed on consent along with a transcript. Counsel agreed that based on necessity and threshold reliability that statement was admissible. The ultimate reliability of part or all of that statement was for me to assess in light of the rest of the evidence. See R. v. Khelawon (2006), 2006 SCC 57, 215 CCC (3d) 161 (SCC) and R. v. Wheatle, 2016 ONSC 6047.
[4] Counsel also filed a lengthy list of admissions.
Overview of the Evidence
Initial Meeting Between the Accused and M.G. in or Near the VIP Lounge on Keele Street
[5] In the evening of June 15, 2014, M.G. was drinking with friends at a bar in Pickering. They left there in a cab. She was dropped off at a location to meet a casual friend named M.C.. It was after midnight and they agreed to go to another bar together. Mr. M.C. was driving so he did not intend to drink very much alcohol. They ended up at the VIP Lounge (the “VIP”) sometime after 1:15 a.m.
[6] At the VIP, M.G. had more drinks and Mr. M.C. had one beer. By that time she was quite intoxicated. M.G. was dancing with a man she met for the first time who was slim and wore a hat. That man was Brandon Rodrigues (“Brandon”). Shortly thereafter, Mr. M.C. decided to leave and told M.G. he would drive her home. She said she was having a good time and would stay longer. Mr. M.C. was fine with that. He testified that M.G. was clearly under the influence of alcohol but he had no concerns for her safety in the circumstances. Mr. M.C. left the VIP at approximately 2:15 a.m.
[7] The admissions of counsel include the following:
(i) The VIP security video shows the accused, M.G. and Brandon inside the lounge; and
(ii) The security video also shows the accused sitting alone and M.G. dancing with Brandon.
[8] Brandon was twenty-six years old when he was interviewed on video by the police on June 24, 2014. The questions and answers were translated by a Spanish interpreter. By the time of this trial, he had been deported to his native Spain. He has no criminal record. Arrangements were made for him to testify at trial by video link from Madrid. Unfortunately, he was unable or unwilling to attend at the location in Spain for the video conference. The Crown then declared that she would not seek to tender his video statement at trial. The defence then sought to tender Brandon’s video statement based on necessity and threshold reliability. The Crown on reflection agreed that the video statement could be received at trial subject to an assessment of ultimate reliability in light of all the evidence. In my view, this was an appropriate and principled position for the Crown to take.
[9] Brandon said that he arrived at the VIP with two friends after 2:00 a.m. They had been drinking beer at another bar before arriving there. He had never met M.G. before. He saw her dancing with another man and then she danced with him. He said she asked him several times if he used marijuana and he said no. M.G. testified that she asked Brandon if he knew of or had any “weed”. Brandon said he could get some but they would have to go outside to get it. She denied that she asked him for cocaine. She does not remember leaving the bar but does remember being outside in the parking lot of the VIP.
[10] The accused (Vasquez) is thirty-six years old. He came to Canada from the Dominican Republic in 2010. He testified with the assistance of a Spanish interpreter. He is married but separated. His stated hope of reconciling with his wife was a significant factor in the answers he gave to police on June 24, 2014. I will refer to that important issue later in these reasons.
[11] In his video statement, Brandon said that he first saw Vasquez that morning after he left the VIP in the parking lot. M.G. was sitting on the ground. Vasquez parked his truck and began to talk to her.
[12] Vasquez had been to another bar with friends prior to arriving at the VIP. He consumed alcohol at both premises. His friends left before him and he later went alone to his truck in the VIP parking lot. He saw M.G. sitting on the pavement. He had never met her but had seen her in the VIP before he left. Brandon was alone standing nearby. Vasquez had seen and spoken to Brandon on prior occasions in bars but testified he did not know his name or contact information.
[13] Vasquez described M.G. as “very pretty” and spoke to her for several minutes. He testified that M.G. asked if he had weed or cocaine. He replied that he did not use those drugs but there was a small amount of weed at his home. In cross-examination, Vasquez mentioned for the first time that the weed was left there by the girlfriend of a friend. Brandon was also involved in the conversation. The three of them decided to go to Vasquez’s residence in his truck.
Vasquez Drives M.G. and Brandon to His Apartment
[14] M.G. testified that Brandon sat in the front passenger seat and she sat in the rear. As Vasquez drove them to his apartment, she started thinking it was not such a good idea. She had been drinking and was perhaps not making the best decisions. She recalls that Vasquez said the person who would supply them marijuana would be angry if they did not go. She noticed that her cellphone needed to be recharged. That would leave her without a phone to call somebody “in case anything happens.” She told them to just take her home. Either Vasquez or Brandon said they could recharge her phone as they drove. She recalls that when she plugged in her phone it did not charge. That gave her concern that “maybe something bad will happen by the end of this night.” One of the two men then gave her a cell phone at her request so she could call her friend. That made her feel better as she phoned her friend M.C.. He did not answer and she did not leave a message. However, she felt comfort in knowing that her friend would at least have the contact number for that phone.
[15] In his video statement, Brandon said he did not recall M.G. saying that her phone was not working as they drove to Vasquez’s apartment.
[16] Vasquez testified that M.G. sat in the front seat and Brandon was in the back as they drove to his apartment. He recalls that she tried to charge her phone and at some point made a call. He and M.G. talked as he drove about various topics, including her repeated interest in the weed available at his apartment.
[17] M.C. testified that he received a phone message from M.G. after he left the VIP. She said she would be “hanging out” for a while before going home. He later received a call from another number after 3:00 a.m. He tried to call her back on her phone but did not connect with her.
Events in the Apartment of Vasquez
[18] When the three of them entered Vasquez’s apartment, Brandon says he saw an unknown black man lying down. He could not tell if there was anyone else in the apartment. While in the kitchen, Vasquez poured a shot of rum for each of Brandon, Vasquez and M.G. They toasted each other and listened to music. At one point, Brandon was dancing with M.G. Vasquez told him he wanted to speak to M.G. They were all in a bedroom at that time. Brandon says he left to use the washroom and was gone for fifteen minutes or so.
[19] Brandon says he heard M.G. say she wanted to leave. Vasquez wanted to talk to her.
[20] Brandon denied that he had sex with M.G. He said they danced and kissed at the apartment. He does not know what happened between Vasquez and M.G.
[21] Vasquez testified that after they arrived at his apartment they sat in the living room. He found the marijuana and gave it to M.G. She rolled it into a cigarette. He poured a shot of rum for each of the three of them. The three listened to music and had a friendly chat. Another friend of Vasquez’s was sleeping in that room. That man said he had to get up at 6:00 a.m. for work and asked them to be quiet. Vasquez said that he and Brandon both danced with M.G.
[22] Vasquez testified that M.G. asked for more marijuana. He said there was some but there was no more paper to roll it in. Brandon suggested that if there was a 7-11 store nearby that Vasquez may be able to buy rolling paper there. Vasquez then went “quickly” to a 7-11 and bought the paper. One of the admissions at trial was that a nearby 7-11 security video shows Vasquez in the store in the early hours of June 16, 2014.
[23] When Vasquez returned, he says he found Brandon and M.G. dancing in the bedroom. He saw Brandon kiss her. Vasquez told the police he did not see Brandon do anything with M.G. Vasquez gave the paper to M.G. and she rolled a marijuana cigarette. The three of them took a puff. Vasquez admitted at trial that he lied to the police in his statement when he said that only M.G. used the drug.
[24] Vasquez testified that it was as if he and Brandon were competing for M.G. Vasquez claims that M.G. seemed to be more attracted to him than to Brandon. At some stage, Brandon made a shrugging gesture as if Vasquez had won. Brandon left the room. Vasquez says that he and M.G. continued dancing and kissing. He described her as “a very beautiful girl…I was excited and so was she.” He testified that she told him she had been to the Dominican Republic and that her boyfriend was from there. M.G. was not asked about that in cross-examination.
[25] M.G. testified that the three of them went into the basement apartment at approximately 3:30 a.m. They sat at a table in the kitchen and talked in a friendly manner. She spoke mainly to Brandon. The two men spoke in Spanish and broken English. She was attracted to Brandon and trusted him. She said she was not attracted to Vasquez. Her impressions of Vasquez were that he was sober even though he had been drinking. His weight appeared to be approximately 300 pounds.
[26] M.G. testified that Vasquez never left the apartment. She recalls that he was pacing around and going in and out of the bedroom. She was not really paying much attention to him. In cross-examination, she said she did not see him leave. She testified that if he did go out and buy something, he was back within a minute or two. Later in cross-examination she agreed that at one point she was alone in the bedroom with Brandon and did not know where Vasquez was.
[27] M.G. testified that they listened to music while they were in the kitchen. She did not recall whether she danced with anyone there. She specifically did not recall dancing with Vasquez since she would not dance with someone she was not attracted to. She did not recall drinking any alcohol in the apartment.
[28] M.G. watched as Brandon rolled a cigarette with marijuana. Vasquez said they should go into another room as they were too loud. She initially disagreed and then took one or two “pulls” of the marijuana. She recalled that Vasquez was rushing them to go into another room. She was uncomfortable as they went into a bedroom. However, she decided to take another puff “and then just do it and then get this over with and leave.” The three of them passed the “spliff” around to each other.
[29] M.G. sat on the edge of the bed. Brandon stood facing her. Vasquez paced and stood near the lone doorway.
The Sexual Acts
[30] Vasquez claims that the sexual acts occurred shortly thereafter. He and M.G. removed their clothes. He kissed her on the neck and chest area. They had sexual intercourse on the bed. He claims he looked for and found a condom to use before he penetrated her. As he did so he says he felt “something very wet, too wet.” He stood up and saw he was covered in blood and a bad smell. He was angry and told her she was stupid to have sex with him when she was menstruating. He told her “in my country when someone is menstruating you don’t do anything like that.”
[31] Vasquez says he went to clean himself up in the washroom. When he returned to the bedroom he saw M.G. putting her clothes on very quickly. Brandon was now also in the room. M.G. was calling Vasquez names such as “fat guy”. He again called her stupid. He testified it was “unbelievable” that she would have sex with him when menstruating. I will return to that comment in my analysis.
[32] Vasquez says that they argued and he told her to get out of his home. He claims he actually told Brandon and her to leave immediately or he would call the police. He escorted Brandon and M.G. out of his apartment to the street. He claims he did not see anything unusual in the way M.G. was dressed after the sexual intercourse.
[33] Vasquez met with the investigating officer at the request of the police on June 24, 2014. He provided a video statement that is exculpatory on its face. He spoke through a Spanish interpreter. When confronted with the alleged sexual assault on M.G. he claimed he did not touch her. He testified that he lied to the police about the consensual sexual intercourse because he hoped to reconcile with his estranged wife. He did not want her to know that he had sexual contact with another woman. I will have more to say about this admitted lie by Vasquez in my analysis.
[34] M.G. testified that she saw Vasquez step out of the room and close the door. She was talking to Brandon. She then saw Vasquez re-enter the room wearing only a towel around his midsection. She asked why he was wearing the towel. Vasquez smiled or laughed but did not respond. It got dark in the room after Vasquez turned out the light. She was pushed onto the bed and felt her pants “being ripped” off her legs. She was on her period and had a pad on. She repeatedly said “stop”. Her arms were restrained as if someone was holding them. She could not tell if it was Vasquez or Brandon who held her arms. She testified that it felt as if more than one person was restraining her.
[35] M.G. agreed in cross-examination that she did not refer to Vasquez wearing only a towel in her statement to police shortly after the event. She said she was very upset when she gave the statement and now has a clear memory that Vasquez came into the room wearing only a towel.
[36] She felt as if she was being choked and could not breathe. She cried and begged for them to stop. They did not. She thought her life might be over if the choking continued so she said “do whatever you need to do, just let me go after.”
[37] As Vasquez was on top of her, she tried to resist with her legs. He kept trying to kiss her but she resisted. He was much larger and stronger than her “and eventually, after a hard struggle, he finally raped me.” She recalls Vasquez saying “no mami” as this happened. It lasted for 15-20 minutes.
[38] Vasquez penetrated her vagina but she is not sure whether he ejaculated. She is not sure whether he wore a condom. When he was finished he gave her back her underwear and pants. She saw Vasquez smiling and smirking.
[39] M.G. testified that during the sexual intercourse she heard Brandon telling Vasquez to stop and let her up. Vasquez did not stop until after the second time he penetrated her. One of the admissions at trial was that she was menstruating at the time.
[40] M.G. was in such a rush to get dressed that she put her pants on backwards. Brandon told her to put her clothes on properly. She told him she did not care and just wanted to leave. Brandon said he could call a cab for her. She said she would not get into a cab with him. She also felt too embarrassed to get on a bus in her condition. She felt sober by the time she left the apartment at approximately 6:45 a.m.
[41] The admissions at trial included the admissibility of photos taken of M.G. at 8:10 p.m. on June 16, 2014. Those photos relate to her neck and arms. M.G. pointed out areas of bruising to those areas. She denied that any of the bruises or marks were the result of aggressive kissing by Vasquez. The bruises and marks referred to by M.G. in her testimony are difficult to discern on the photos. However, the list of admissions includes the following:
“There is no issue that the SAEK (sexual assault evidence kit) nurse at Women’s College Hospital began her examination of M.G> at 5:30 p.m. on June 16, 2014 and found bruising to both of (her) wrists and small bruises on both sides of her neck.”
I will have more to say about this important admission in my analysis.
[42] M.G. believes that Brandon participated in the sexual attack on her but it was Vasquez who raped her. She does not believe that Vasquez could have done this by himself.
[43] M.G. denied the following suggestions made in cross-examination:
(a) She was angry after having consensual sex with Vasquez because he insulted her;
(b) After the sexual acts, Vasquez noticed that she was menstruating which left “blood all over him”; and
(c) Vasquez insulted her by saying she was drunk and “why would you have sex with me when you’re menstruating?”
[44] M.G. further denied that in response to Vasquez’s insults after consensual sex she made fun of his weight and said that he smelled bad. She also denied the suggestion that Vasquez told her in vulgar language to get out of his house and that she replied “not until you pay my cab.”
M.G. Leaves the Apartment
[45] M.G. did not have a working cellphone. She had no money and did not want to take a bus home at 6:45 a.m. She finally did get into the cab. She sat in the backseat with Brandon. He asked for her phone number. She replied “why would I give you my number after what just happened?” She was dropped off near her home.
[46] She lay down at her home but felt in a panic based on what had happened. She spoke to M.C. who encouraged her to call the police.
[47] Abebe Borshe was the cab driver who was flagged down by Brandon near Vasquez’s apartment at approximately 6:30 a.m. on June 16, 2014. He testified that M.G. was very angry and initially refused to get into the cab with Brandon. He noticed that M.G.’s pants were not on properly. Her face was red and she said she wanted to kill herself. He was concerned that she might try to get out of the cab as he drove. He tried to console her and eventually dropped her off safely at her destination.
Analysis
[48] The accused has testified and denied that he committed either of the alleged offences. In considering his evidence, I must apply the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 SCR 742 as follows:
(1) If I believe his evidence I must acquit;
(2) If I do not believe his evidence but it leaves me in reasonable doubt I must acquit;
(3) Even if his evidence does not leave me in reasonable doubt I must consider whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt that he is guilty.
[49] There is no dispute that Vasquez and M.G. had sexual intercourse in his bedroom. He claims it was consensual and that he did not restrain or harm M.G. in any way. He further claims that he was angry and disgusted to find that she was menstruating at the time. Based on that he claims they argued after the fact and she called him derogatory names.
[50] At trial, Vasquez admitted that he lied to the police when he denied even touching M.G., let alone having sexual intercourse with her. That was a significant lie on the critical issue. However, that is not the end of the matter. I must also consider his reason for lying. He claims he did not want to disclose this sexual encounter with M.G. to the police out of concern for a possible reconciliation with his estranged wife.
[51] In assessing Vasquez’s credibility, I have also considered other proven lies that he told to police, including the following:
(i) He told the police that he did not use drugs and that M.G. was the only person to puff marijuana in his apartment. At trial he admitted that he, Brandon and M.G. each puffed marijuana that early morning;
(ii) He told the police that he did not see Brandon do anything physical with M.G. at the apartment. He specifically denied seeing Brandon dance and kiss M.G. At trial he admitted that he did see Brandon dance with and kiss M.G.
[52] In assessing the evidence of M.G., I have considered both reliability and credibility. In the hours preceding the sexual acts, she had consumed a considerable amount of alcohol as well as some puffs of marijuana in the apartment. By the time she left the apartment sometime close to 6:30 a.m., she claims she was sober. On any view she had been subjected to an intense experience in the time immediately before she left.
[53] M.G. testified that she did not see Vasquez leave the apartment while she was there. There is an admission by Crown and defence that at some stage Vasquez went to a nearby 7-11 store before returning. Based on the evidence of Brandon, Vasquez and M.G., there were some time periods when she was alone with Brandon and Vasquez stepped out of the bedroom. M.G.’s testimony that she believed Vasquez remained in the apartment and that she did not see him leave is consistent with him being out of her sight from time to time. This apparent discrepancy in the evidence does not detract from her reliability or credibility.
[54] M.G. is convinced that while it was Vasquez who raped her, she was restrained in the process by another person, presumably Brandon. The Crown is not obliged to prove that Brandon was involved in the alleged sexual assault. However, this is an important issue in assessing her evidence. It is important to consider the following:
(1) The respective sizes of Vasquez, Brandon and M.G.: Vasquez is close to 300 pounds. Brandon is very thin. M.G. weighs significantly less than Vasquez;
(2) M.G. claims she sustained bruises to her arms and neck as a result of being restrained and choked in the course of the alleged sexual assault;
(3) The bruises and marks to her wrists and neck are difficult to discern in the photos filed as exhibits. However, the admissions by counsel include the fact that the nurse at the hospital who examined M.G. at 5:30 p.m. on June 16, 2014 found bruising to both of her wrists and small bruises on both sides of her neck;
(4) Brandon denies that he participated in or assisted in a sexual assault on M.G. at any time; and
(5) Vasquez denies that he did anything that would have caused the observed bruises to M.G.
[55] The admission that these bruises and marks were observed confirms her evidence on an important point. A man weighing close to 300 pounds would not likely require any assistance in restraining and controlling a much smaller woman. Her perception that the second person must have helped to restrain her is understandable. The 300-pound man on top of a much smaller woman is in position to both hold her arms and wrists and alternatively choke her. If the woman is being choked there is no need to restrain her arms in order to control her. That is what I find happened here. Vasquez was on top of her, forcing her legs open with his legs, and alternately holding her arms and choking her as he penetrated her vaginally.
[56] In the face of M.G.’s reluctance to go to his apartment and later to go into the bedroom, it was Vasquez who insisted that she proceed.
[57] The “big lie” told by Vasquez to the police, the denial that he even touched her, also left out a significant part of his evidence at trial. There was no mention to the police that M.G. was menstruating which ultimately angered and disgusted him. At trial he claims he told her after-the-fact “in my country when someone is menstruating you don’t do anything like that.” To paraphrase his testimony it is indeed unbelievable that she would have sexual intercourse with someone when she was menstruating. Vasquez testified that he did not notice anything unusual about the way M.G. was dressed after the sexual intercourse. Brandon, M.G. and the cab driver who picked her up after-the-fact all noticed that her clothes were not on properly.
[58] I reject the evidence of Vasquez that he lied to the police about the sexual intercourse out of a hope to possibly reconcile with his estranged wife. The police confronted him with the allegation of non-consensual sex with M.G. His responses were admitted to be voluntary at the outset of trial. In cross-examination, he retreated from that admission and claimed he was pressured. On the face of this serious allegation, he chose to tell the “big lie” to the police and then run an alternate version at trial. His evidence must be assessed in light of the other evidence on this trial. I do not accept his explanation for the denial of any physical contact with M.G.
[59] I find as a fact that M.G. was not attracted to Vasquez and did not consent to sexual intercourse with him. She was menstruating at the time and had no desire or intention to have sexual intercourse with anyone. She conveyed her clear lack of consent to Vasquez by words and actions. Her lack of consent is corroborated by the bruises to her wrists and neck area. I do not accept the evidence of Vasquez that the sexual intercourse was consensual and his evidence does not leave me in reasonable doubt. The bruises to her neck area were caused by a choking action by Vasquez to enable him to force sexual intercourse on her.
[60] M.G. has a vivid memory at trial that Vasquez entered the bedroom just before the sexual interaction wearing only a towel. She agreed that she did not refer to that in her statement to police in the early afternoon of June 16, 2014. She testified that when she gave that statement she was very tired and stressed about the events. She was consistent with the police and at trial that at some point Vasquez left the room and re-entered before taking off whatever he wore and proceeded to push her onto the bed. I have considered the failure to mention the towel to the police but do not find it detracts significantly from her reliability or credibility. I am satisfied based on the totality of her evidence and those parts of the evidence of Vasquez and Brandon that I accept that the Crown has proven both counts beyond a reasonable doubt.
[61] RESULT: there will be convictions on both counts.
B. P. O’Marra J.