CITATION: Regina v. Palmer-Coke, 2017 ONSC 4501

COURT FILE NO.: CR-14-10000175-0000

DATE: 20170725

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENZEL PALMER-COKE

COUNSEL:

Rebecca Edward for the Crown

Paula Seymour and Daisy Bygrave for the Defendant

HEARD: June 5-9, 12-16, 2017

ORDER FOR PUBLICATION BAN PURSUANT TO s. 486.4 ON THE IDENTITY OF THE COMPLAINANT

REASONS FOR JUDGMENT

HIMEL J.

[1] Denzel Palmer-Coke is charged with one count of sexual assault causing bodily harm contrary to s. 272(1)(c) of the Criminal Code and one count of unlawful confinement contrary to s. 279(2) of the Code. Mr. Palmer-Coke elected to be tried by a judge without a jury.

[2] The parties filed an Agreed Statement of Facts as an exhibit containing admissions pursuant to s. 655 of the Code. The defence admitted the date, time, and jurisdiction. The defence conceded that Mr. Palmer-Coke was present in the hotel room of the complainant, referred to as "KT", on the date and time specified. The defence conceded the voluntariness of the videotaped statement that Mr. Palmer-Coke gave police on July 24, 2012 and that it may be introduced without the necessity of a voir dire. The following is also admitted: the authenticity of the photographs and surveillance videos taken from the hotel are fair and accurate; the continuity of the sexual assault kit and blood samples taken from KT; the continuity of the underwear, gum, and other items seized from the hotel room by police; the continuity of the pink, short sleeved, button-up shirt and other items seized by police from Mr. Palmer-Coke's apartment; and the qualifications and expert designation of the witness, Police Constable Scott Grondin, as an expert in the identification, collection, and analysis of fingerprints. It was further admitted that Mr. Palmer-Coke's fingerprint was found on a wine bottle in one of the hotel rooms where KT was staying.

[3] The following are my reasons for judgment.

FACTUAL BACKGROUND:

[4] The complainant, KT, is 29 years old and was 24 years old at the time of the incident. She works full-time and goes to school. She is 5 feet 2 inches tall and weighs 100 pounds. Her weight was approximately 105 pounds at the time of the incident. She had been in a committed relationship with her boyfriend, with whom she was living at the time.

[5] The accused, Mr. Palmer-Coke, is 24 years old and was 19 years old at the time of the incident. He is 5'9" and weighs 170 pounds. He was thinner in 2012. He works part-time at Red Lobster and has worked as a server, host, and bus boy for six years. He graduated from Thornhill Secondary School in 2011, attended Seneca College, and received an Advanced Diploma in Graphic design in 2014. Then he worked for some time and returned to school in the joint program for design at York University and Sheridan College. In the summer of 2012, he was attending school and working.

[6] On Saturday, July 21, 2012, Ms. T travelled from St. Catharines to Toronto to attend a bachelorette party with some girlfriends. They were staying overnight at the Hilton Garden Hotel on Peter Street in two adjoining rooms. Ms. T was in room 607 and the others were in 608. The women arrived at the hotel at approximately 2:00 p.m. Some of them began drinking sangria that afternoon but Ms. T said she did not feel like drinking at that time as she knew it would be a long night. She had been out the night before at a concert at a winery. The group had a reservation at Milestones Restaurant for 6:30 p.m. and seventeen of them met for dinner. Ms. T said that she had a bloody Caesar and a vodka water at the restaurant.

[7] After dinner, the group returned to the hotel, where they played games and gave gifts to the bride. They were drinking punch and other alcohol, and Ms. T had approximately four drinks. The group stayed in the room until just before midnight and then walked over to a club together. They had reservations at 12:00 a.m. for a booth and bottle service at the Cobra nightclub. On the way, Ms. T and her friends had a scavenger hunt, and they had a list of things to do or get. As they were walking to the Cobra nightclub, Ms. T and her friend, K.Z., ran into Ms. T's former boyfriend and two friends. They all joined the others at the club.

[8] The group arrived at the club a bit late. During the evening, they drank, talked, and danced. Ms. T believes she had four drinks while she was at the Cobra nightclub. Just before 1:30 a.m., Ms. T said that she wanted to go back to the hotel. According to her friends, she had been sick in the bathroom and was ejected from the bar for being too intoxicated. One of her friends, V.V., heard her yelling outside and saying she wanted to go back to the hotel. V.V. and another friend put her in a taxi and paid the driver, who drove her alone to the hotel. Ms. T said that she assumed the others would be coming back to the room shortly. V.V. described Ms. T's level of intoxication as 8 or 9 out of 10.

[9] Ms. T was on the telephone as she got out of the taxi at the hotel entrance at approximately 1:26 a.m. She testified that she does not remember the taxi ride; only getting out of the taxi and going into the hotel. She said she does not remember talking to anyone. Hotel video surveillance shows her walking to the elevator with Mr. Palmer-Coke at approximately 1:29 a.m. He was seen on the surveillance camera entering the hotel from the street just prior to this. They did not know each other previously and their initial encounter in the lobby was a matter of perhaps less than two minutes.

[10] Ms. T testified that she went to her room on the sixth floor. When she entered room 608 using her card key, she noticed that none of her friends were there. She checked the adjoining room 607. Then she turned around and saw a man standing at the door between the adjoining rooms. She was shocked and asked what he was doing there. She recalled him cursing her, calling her a "fucking bitch," and saying that he was "going to teach me a lesson and make me pay." She said she asked, "who are you?" She had no idea about what he was saying. The male was dark, skinny, taller than her, and approximately 24 years old. She said she was in shock and did not recognize the person at all.

[11] Ms. T recalled that Mr. Palmer-Coke came further into the room and pushed her onto the bed closest to the window in the adjoining room. Then he straddled her with his knees on the edge of the bed. He ripped off her underwear, tried to pull the top of her dress down, and touched her near her vagina. She said she does not recall what he said but she screamed, fought back, and tried to push him off. As a result, he punched her in the face, injuring her eye and facial area. She thought that fighting back was not going to work. However, she kneed him in the groin and managed to briefly break free. Mr. Palmer-Coke then pulled her back by the hair and punched her in the face, causing her to fall to the ground and hit her head. Once she got up, he came around in front of her and punched her again in the face. She fought him off by kneeing him in the groin again and, this time, was able to run out of the room into the hallway.

[12] In the hallway, Ms. T literally ran into Shawn Quilty, who had just walked out of the elevator to go to his room on the sixth floor. Mr. Quilty had come to Toronto to watch a soccer match and was staying overnight at the Hilton. He was returning to his room on the sixth floor after the game and dinner. Mr. Quilty was surprised when he and Ms. T collided and she collapsed into his arms. They did not know each other. He described the young woman as looking disheveled and as though she had been struck in the face. There was blood on her nose and she looked like she had been hit on the cheeks. He described her as frantic and sobbing. As she buried her face in his chest, someone came from behind them and said, "don't believe her. She's crazy." Then he went quickly down the hall. Mr. Quilty testified that he saw a man over his shoulder who was African American but he did not get a clear look of him. The person went in the opposite direction.

[13] Ms. T testified that, when she left the club, she was intoxicated but that when she saw someone standing in her room, she was in shock and was not that intoxicated. She said she had ten to twelve drinks that night, which was more than the usual she would have for a special occasion. She did not realize how intoxicated she had been until she spoke with police and was shown a photograph of her with the male by the elevator in the hotel. Ms. T testified that, after the attack, she was terrified and did not know if the person who attacked her would return. When her friends started to return to the hotel after the club, she refused to talk to them.

[14] According to a friend, N.C., Ms. T called Ms. N.C.'s boyfriend's telephone at approximately 1:30 a.m. She answered and Ms. T said she was at the hotel. Ms. N.C. knew she was in Toronto at a bachelorette party but did not know the details. She said she could hear Ms. T speaking to someone and say, "you should leave now" and the male person said, "Why are you being so rude?" She heard Ms. T say, "you can take the bottle." She then heard a scuffle and Ms. T say "What the fuck?" three times, and the telephone went dead. Ms. N.C. called back but the call went to voice mail. Then she sent a message to Ms. T's boyfriend asking where she was and saying that she was trying to help.

[15] Denise Isaac was also staying on the sixth floor of the Hilton Garden Hotel on the night of Saturday, July 22. She was working as a manager at a night club and was going back to the club in the early morning hours to help close the premises. As she walked towards the elevator, she heard screams and realized they were coming from a room a few doors down from the elevator. The door had a "Do Not Disturb" sign on it but the door was not fully closed. She overheard a woman screaming "Stop. Don't hurt me. You are ruining my night. Stop." She also said that she heard the woman say, "I'll do it. I'll do it. Please stop." She said that, at first, she thought it was a domestic dispute but then she believed that the woman sounded fearful and the screams got louder. She said she heard struggling, tussling, and hitting of furniture. She went to the main floor and alerted security. When she arrived back at the hotel at 4:00 or 5:00 a.m., police were outside the door and asked her what she heard. She went to the police station and provided a videotaped statement.

[16] After Ms. Isaac alerted security, they went upstairs and called the police, who arrived shortly thereafter and began to investigate. Officer Robert Patterson and Officer Ian Lam were in the Entertainment District and were the officers called to the scene. They observed Ms. T sitting on the floor in front of room 607 crying and upset. She had an injury to her eye, which was bruised, and an abrasion on her knee. According to Officer Lam, Ms. T said that she was punched in the face and described the suspect as male, brown, clean shaven, approximately 30 years old, with short black hair. The officers spoke with Mr. Quilty, who stayed with Ms. T until police and the paramedics arrived. During the time that Mr. Quilty sat with Ms. T, she told him that she met an individual at the bar and he came back to the hotel. It seemed to Mr. Quilty that she was in extreme fear for her life. Officers Patterson and Lam also entered rooms 607 and 608 and noted that there were blood stains on the bed closest to the window. They found black thong panties on the floor next to the bed and a table next to the bed had been knocked over.

[17] Detective Paul Ward also arrived on the scene and spoke to Ms. T in the ambulance before she left for the hospital. She gave her name and said that, "he punched me numerous times and I was the bitch because I tried to fight him." He asked if the person tried to have sex and she said "yes, he tried to take my pants off and he tried to have sex." Her description was a male, white, 24 years old. He was not able to get more information as she was upset and crying.

[18] Detective Ward viewed the video surveillance from the hotel and, on the basis of that and speaking to a witness who had seen the complainant with the male, was able to obtain a description of the man who had been with Ms. T in the lobby area earlier. He was described as male, black, flat top haircut, and wearing a pink shirt. They believed he may still be in the hotel. Other police attended to assist with locating the person when they learned that the suspect had been speaking at the front desk at 2:20 a.m. and then left the hotel.

[19] Officer Scott Grondin is a trained fingerprint analyst and a member of the Forensic Identification Services for the Toronto Police Service. He attended at the scene on the morning of July 22, 2012 and took photographs of the elevator, the sixth floor hallway, the doors, and the internal portions of the adjoining rooms 607 and 608. Police searched the hotel rooms and found a number of bottles of alcohol and glasses in the rooms. They seized bottles, glasses, bed sheets with a red stain, chewing gum, a pair of underwear on the floor, and noted that a table next to the bed had been turned over. A fingerprint had been located on a bottle of wine which was compared to a print taken from Mr. Palmer-Coke's booking. The fingerprint was identified as being from the right ring finger of Mr. Palmer-Coke.

[20] Ms. T was taken to hospital by ambulance. Nurse Practitioner Judy Waldman testified that she was called in as she was on call for Women's College Hospital, and that she spoke to Ms. T and completed a sexual assault assessment form. Ms. Waldman noted that the complainant had said she had no memory of entering the hotel but remembered a black male punching her in the face and calling her a bitch. She said she was rescued by a male in the hallway who came out of the elevator. She was not wearing underwear and did not know if she had been sexually assaulted. Nurse Waldman agreed in cross-examination that Ms. T remembered being hit but did not indicate that she was restrained, strangled, or had sex forced upon her. She also recounted having four vodkas at the hotel and three to four at the bar. Ms. Waldman completed the sexual assault evidence kit, taking various samples for the purpose of determining whether there had been oral, vaginal, or anal contact. She also discussed medication options with Ms. T, conducted a physical examination, and took a urine sample and blood sample for analysis. Ms. Waldman also noted that Ms. T had a black eye and swelling, as well as a bloody nose, and provided treatment for her injuries.

[21] After Ms. T was taken to hospital, Mr. Quilty remained on scene until police said he could go to his room sometime between 4:00 and 5:00 a.m. He was asked to provide a statement the following morning. He did so by telephone and the statement was recorded. He was cross-examined at trial about the fact that he did not mention the colour of the man he saw over his shoulder that evening. It was also put to him that the woman had a bloody nose, one of her eyes was shut and swollen, and she had said to him, "Someone just hit me. I need help." He agreed that Ms. T did not specifically use the word sex at any time; only that someone had hit her.

[22] Ms. T's friend had accompanied her to the hospital and waited until her brother and other family members arrived. After Ms. T was released from hospital, she picked up her items at the hotel and went to speak to the police at the station, where she gave a videotaped statement. It was approximately 7:30 a.m.

[23] Former Detective Constable Villaflora and Detective Hochdral were members of the Sex Crimes Unit and were assigned to the investigation of the case. They reviewed video surveillance from the hotel, saw the complainant at the hospital, investigated the scene, and interviewed the complainant on videotape.

[24] During the interview of the complainant in the morning of July 22, 2012, Ms. T outlined what she remembered of the events that night. She said she did not know Mr. Palmer-Coke and had no idea how he got into her room. When she was confronted with the photograph from hotel surveillance at 1:29 a.m. of her walking in the lower lobby of the Hilton Hotel with her arm around Mr. Palmer-Coke and his arm around her back, she did not know how that happened. She identified herself as the person who got out of the taxi and entered the hotel while on the telephone at 1:26 a.m. She was in the lobby for perhaps a minute or two. According to Detective Constable Villaflora, Ms. T said she had consumed approximately twelve vodka waters that night but said she had been fine.

[25] Counsel for Mr. Palmer-Coke cross-examined Detective Constable Villaflora about Ms. T not seeming to be overly intoxicated both when she was interviewed and in the surveillance and photographs. Counsel also cross-examined Ms. T about the fact that she was calm and relaxed during the police interview until she was confronted with the photograph in the hotel lobby, where she was seen walking arm in arm with Mr. Palmer-Coke. That was when she began to cry. Counsel also put to the witness that when she realized she had no memory of certain events that happened that night, she cried. Ms. T denied that she has a bad memory. She said that she has a good memory of what happened but not of walking into the hotel and through the lobby with Mr. Palmer-Coke. She agreed that her memory has gaps. However, for the most part, she said she remembered the events very well.

[26] Ms. T denied that there was a consensual kissing, fondling, or sexual contact with Mr. Palmer-Coke. The scenario put to her by defence counsel that she and Mr. Palmer-Coke were kissing and fondling each other was denied vehemently by her. She denied that she had any interest in other men at the club when counsel for Mr. Palmer-Coke endeavoured to cross-examine her about being flirtatious during the evening. She also denied that she was hung over from drinking excessively the previous evening and that is why she did not start drinking during the afternoon like the other girls. Ms. T also denied that her friend V.V. would describe her as often drinking to the point of throwing up. When V.V. was confronted in cross-examination about this, she said she did not tell police that Ms. T often drank too much and that she has put her in a cab before when she was thrown out of a bar.

[27] Detective Constable Villaflora and Detective Hochdral also interviewed Mr. Palmer-Coke following his arrest on July 23, 2012, after he was given his right to counsel and consulted with duty counsel at the police station. He provided a statement at approximately 2:40 p.m.

[28] The defence conceded the voluntariness of the statements made by Mr. Palmer-Coke to Detective Constable Villaflora. In his statement, he explained that he had been at a friend's birthday party on Saturday, July 21 and the friend and others were staying at the Hilton Garden Hotel. Before they went out, they were sitting in the hotel having drinks and he was interested in a girl, Laura Reading, but apparently the birthday girl was jealous so they stopped kissing. They went for dinner to Shoeless Joes and later to a club at Richmond and Peter Streets.

[29] At the club, they received bottle service but he did not drink much. He was flirting with the bartender and texting with his mother. He was asked by the brother of the birthday girl to take care of his sister and they left the club at midnight or later. On the way, he spoke to a street musician and called his mother. Somehow, he was separated from the others. He went back to the hotel when he ran into a girl in the lobby who was drunk and grabbed on to him. He said initially that she fell out of the elevator and hit her face. Then he walked her to her room and she gave him her room key. He said that she tried to kiss him, was lifting off her shirt, and ripped off her own panties. Then she took off and fell into the arms of some guy. Mr. Palmer-Coke said he went down to his friend Laura as he was uncomfortable. He got Laura's number and texted his mother. He then caught a cab to go home as he had work the next day.

[30] Mr. Palmer-Coke denied hitting anyone and said the girl was white, short, ugly, not attractive and skinny. He said that she wasn't making sense and "she was not able to walk at all." He was holding her arm. He also said, "All of her friends ditched her." He said that he "threw her on the first bed that he saw" when they went into the room. When she ran out of the room, she fell on a guy getting out of the elevator and said, "he's trying to do something." Mr. Palmer-Coke said he took the stairs as he did not like being blamed. He said he didn't want anything to do with Ms. T. When questioned by Detective Constable Villaflora about her injury, he said she fell to the floor as she was getting off the elevator and hurt herself as it was a hard fall. As he outlined the events, he told the officer that he was a virgin and that he had never had sex before. He said he told the girl he was not ready and then she ran out.

[31] Mr. Palmer-Coke was confronted by the officer with the surveillance photographs and with the suggestion that he got angry and punched the girl twice and she tried to escape. She had been screaming and someone walking by heard the screams. When she broke free, she ran to the first person she saw. Mr. Palmer-Coke maintained that he had no sexual interest in her and was uncomfortable. Then he revised what happened and said that, when they got into the room, she was coming on to him, pulling down his pants, and taking his penis out of his pants. He said that is when "I must have punched her." Then he was confronted with the fact that she had two black eyes and he said he hit her twice. He did not want to have sex with her and she screamed after he punched her. He could not explain why he did not just walk away.

[32] In addition to obtaining a warrant to arrest Mr. Palmer-Coke on July 24, 2012, police obtained a warrant to search his house. They found a pink buttoned shirt which had been identified in the video surveillance as the shirt worn by the person who was with Ms. T. They submitted the shirt to Forensic Identification Services for analysis. Melanie Richard testified that she could not exclude KT from the profile of the substance found on the shirt. In other words, there was extremely strong scientific support that it was her blood on Mr. Palmer-Coke's shirt. Police also seized some chewing gum found on the floor in the hotel room beside the bed where Ms. T said she was attacked and a male profile was detected from the DNA analysis of the gum.

[33] Mr. Palmer-Coke elected to give evidence at the trial. He testified that he was diagnosed with a learning disability when he was twelve or thirteen years old and required an individual education plan. He said that he had difficulty at York University and was on academic probation as a result of the learning disability. He required accommodation such as extra time to complete tests and a computer to record answers, as well as an individual education plan in order to process information.

[34] Mr. Palmer-Coke is now enrolled at the Ontario College of Art and Design in Graphic Design. He has no criminal record and resides with his mother. He explained that he was arrested three days after the incident, after police called his cell phone and asked to see him. Then they arrested him and took him to the station to give a videotaped statement. He said that he told them lies as he did not want to admit that he punched Ms. T. He said he was scared. He explained that he was at the Hilton Hotel to celebrate a friend's nineteenth birthday and arrived Saturday afternoon. When he went to her room, he saw some old school friends, family, and some new faces. They planned to stay at the hotel, go to Shoeless Joes for dinner, return to the hotel to get ready, and go to the Mansion Club two blocks away for drinks.

[35] During the afternoon, they were drinking, laughing, and watching television. He did not drink much as he did not have money for alcohol. When they went to the club, they had a booth and bottle service. He said he had one or two drinks. The group got separated at the club but they had agreed to meet up at the hotel. He walked back alone and stopped to talk to a musician on the street.

[36] Mr. Palmer-Coke said he entered the hotel and was walking into the lobby when a girl bumped into him. He asked if she was all right and she said yes. Then he said she gave him her hotel key and had her arm wrapped around his arm. He walked her to the elevator and they were talking as they walked hand in hand. It was 1:29 a.m. She pushed the elevator button and they entered the elevator. She was on the telephone at the time. They got off the elevator and he walked her to her room. He passed her the hotel key and she opened the door and said, "have a good night." Then she said, "No, come in" and he said "o.k."

[37] Mr. Palmer-Coke testified that he walked into the room and she walked over to him. He said that it was awkward. She had invited him in and he "didn't know what for." He said that she sat on the bed and asked what he was doing. Then she motioned to him to come over and sit down. He walked over and sat beside her. She asked, "why are you so tense? Relax a bit." He said he was fine when she rubbed his shoulder and back and told him to "loosen up a bit." Then she began to rub his leg. They were talking a bit and he said he was shy. She kissed him on the cheek and he said "ok" and went for a kiss. Then they kissed and it was getting "hot and heavy" as she rubbed his leg, thigh, and penis. He said that she was unbuttoning his shirt and he was touching her breasts over her dress. They moved further onto the bed when she was on her back and she had one leg around him. They were kissing and she was rubbing his head and guiding it towards her vagina. She also raised her hips and her dress.

[38] Mr. Palmer-Coke said he was by her vagina with her dress raised when he tore her underwear. He said it was hard to do. When asked why he did so, he said "I thought that's how people had sex. I saw it in a dirty movie. I never had sex before. I was a virgin and I didn't know anything." He saw her vagina but was not used to it. He said he was confused and didn't know what to do next. She started noticing and was moving away from him and towards the headboard. He was confused and thought he did something wrong. He told her, "If I did anything wrong, I'm sorry." Then she said, "who are you?" and "I don't know you." He said he was shaken and jumped back as it didn't make sense to him and he didn't know what that meant. He said, "One minute we were making out and one minute you don't know who I am." He said that he tried to talk to her to calm her down, but she got off the bed and crouched between the two beds. He said he was standing by the edge of the bed and was trying to talk to her. He said he did not know what she was doing but she was on the phone. He said, "please calm down" and she said, "I don't know you. Who are you?" Then he walked over to her to get the telephone and she started hitting with open hands and kicking him. He said that he tried to get her to stop and to talk to him. She screamed and continued to hit and kick him. Then he punched her twice and she fell back.

[39] Mr. Palmer-Coke did not remember where he had punched Ms. T as it happened so quickly. She was crying and he said it was an accident and that he apologized several times. He said he started walking toward the door when she ran past him and out the door. He said he did not understand what was going on. He went out and she was in some guy's arms and screaming. He walked past them towards the elevator. He said she was screaming and crying and he was saying, "I don't understand. It doesn't make sense." As the elevator was taking time, he went to take the stairs. He went to his friend's room downstairs, talked to Laura, and tried to explain what happened. He sat with her and tried to make sense of the incident. He was shaken up. He also texted his mother "This crazy girl wanted to have sex" at 1:47 a.m. His mother wrote back asking if he was okay and he said "some drunk girl was acting crazy and asking me to fuck her and she acted all crazy." Then his friend Laura walked him to the elevator and to the lobby. They arranged to meet the next day. He asked about a taxi at the front desk and left the hotel at 2:20 a.m.

[40] In cross-examination, counsel pointed out to Mr. Palmer-Coke that he said that some of his police statement was truthful and some of it was untruthful. He began by denying everything to Detective Constable Villafora and said the complainant was "ugly" and he was not attracted to her. Later, he told him a different version as the interview progressed. He explained that he did not want the officer to think he was attracted to her so he lied. He said he was scared talking to police and tried to appear cool about flirting with the bartender and the street musician. He agreed that he was arm in arm with the complainant in the lobby but he disagreed that he was holding her up. He also told Laura Reading something different and left out the portion about punching Ms. T.

[41] Crown counsel also put to Mr. Palmer-Coke in cross-examination that he was prepared to lose his virginity to a girl he met five minutes earlier and was frustrated earlier in the evening: he was making out with Laura but had to stop because it would offend the birthday girl, he was flirting with the server at the club, and he was talking to the street musician. Counsel suggested that he was excited and threw her to the bed. When she backed away and asked who he was, he was shocked and became aggressive. He denied this and said he was confused. Counsel put to him that he could have left the room but he said he didn't think to leave. He could hear her talking on the telephone but he wanted to talk to her so he punched her. He said he was scared. He kept repeating that he just wanted to talk to her but, when he went to grab the phone, she started screaming and hitting him. He said he told her that he just wanted to talk and that he did not want to hurt her. He agreed that he punched her twice in order to talk to her. He said it wasn't planned where to punch her but he wanted her to let go of the telephone so they could talk. He agreed that he caused the two black eyes and bloody nose. He also said she fell back after he punched her.

[42] Mr. Palmer-Coke said that he told Ms. T he did not mean to hurt her and that he was going to leave. However, as he was walking to the door, she ran past him through the door. He kept repeating in his testimony that, "I was confused. You invite me to your room, we're hooking up, then you act like you don't know me." He denied that he was sexually frustrated although Crown counsel referred to the fact that Laura "put the brakes on" when they were making out. She suggested that Mr. Palmer Coke was sexually excited, that Ms. T was putting the brakes on, and that Mr. Palmer-Coke was not taking no for an answer.

[43] Crown counsel also cross-examined Mr. Palmer-Coke about the fact that he presented several versions of the events. She suggested that he lied in his videotaped statement to police when he said that he was helping a drunk girl in the lobby to the elevator. He described Ms. T as ugly and said that he did not touch her. He said that she fell and hit her head on the wall and that she already had a bloody nose. Mr. Palmer-Coke said that the reason he lied was that he did not think the police would believe that he was invited to her room, that she began kissing him, and that she ripped off her own panties. The Crown put to Mr. Palmer-Coke that Ms. T was a perfect target. She was intoxicated, alone and without her friends, and in the hotel. It was obvious to him that she was drunk and he took advantage of that. Mr. Palmer Coke said he never forced himself on Ms. T and denied that she was drunk.

[44] In the second version of events given to the police, Mr. Palmer-Coke said that she was drunk and coming on to him and was trying to give him a blow job so he punched her in the face.

[45] In the version Mr. Palmer-Coke told Laura Reading, he said that Ms. T was drunk and stumbling, and that he walked her upstairs when she tried to unbuckle his pants. He never mentioned he went into her room or that he punched her.

[46] At trial, Mr. Palmer-Coke's version of events was that there was consensual sex with the complainant that had gone wrong. He said it was a "hook up that had gone bad." He testified that he was confused as she stopped and asked who he was and that he wanted to talk to her. However, Ms. T was using the telephone and would not listen to him so he punched her as he tried to grab the telephone. He disagreed with what Denise Isaac said that Ms. T was screaming and yelled "stop. Stop. I'll do whatever." He said that she said to stop but not the part about "don't hit me. I'll do whatever."

[47] At trial, the Crown also called a toxicologist that provided an opinion on Ms. T's level of intoxication. Dr. Robert Langille testified that Ms. T's blood alcohol reading, taken at 5:35 a.m., was 214 mg of alcohol in 100 ml of blood. His opinion was that Ms. T would have had a blood alcohol reading of 254 to 294 mg of alcohol per 100 ml of blood at the time of the alleged incidents, that is, between 1:00 a.m. and 2:30 a.m. While intoxication depends on tolerance to alcohol, these readings are fairly high and this amount of alcohol would affect the degree of alertness, awareness, and ability to give divided attention. The effects would also include lack of co-ordination, slurring of speech, and changes in emotional state. Given a hypothetical of a 5'2" female weighing between 98 and 105 pounds who had been drinking from approximately 6:30 p.m. until 1:30 a.m., and the readings at 5:35 a.m., his opinion was that the person would have consumed 9 ½ to 10 fluid ounces of 40% alcohol. Dr. Langille also said that alcohol affects memory, can cause black outs of long term memory, and may also cause grey outs where there are periods of time that can be remembered and others where there is no memory. However, where a stressful event occurs, it is possible that adrenalin will increase alertness for a short time and there may be reliable memories following a stressful event.

[48] Dr. Langille was shown the video clip of Ms. T getting out of the taxi and entering the hotel. He noted that she bumped into someone looking as if she was not aware the person was there, was talking on the telephone, and seemed not to be able to perceive her environment. He agreed with defence counsel that she did not stumble or fall. He also agreed that alcohol has a tendency to reduce inhibitions.

[49] The Crown also called Barbara Doupe, an expert on the analysis of textile damage, from the Centre for Forensic Services. She provided an opinion that, based upon the location of where the damage was in the underwear and the nature of the tears in the fabric, the underwear had been torn with force and the damage was recent.

ISSUES:

[50] The issues in this case are whether the Crown has proven beyond a reasonable doubt that Mr. Palmer-Coke sexually assaulted the complainant and caused bodily harm to her, and that Mr. Palmer-Coke confined her without lawful authority.

POSITIONS OF THE PARTIES:

The Crown

[51] Crown counsel argues that, even without considering the issue of whether the assault took place for a sexual purpose, Mr. Palmer-Coke, on his own admissions, is guilty of assault causing bodily harm. The Crown argues that Mr. Palmer-Coke presented four different versions of the events. In his second statement to police, he admitted that he punched the complainant twice but said it was because she was grabbing his penis and forcing him to have sex. The Crown says that version makes no sense given the size differences between the complainant and Mr. Palmer-Coke.

[52] In his fourth version of events, provided five years after the incident, Mr. Palmer-Coke admitted that he punched Ms. T twice in the face while she was on the telephone, that it happened quickly, and that he felt badly. He wanted her to give up the phone so that he could speak to her. The Crown argues that he used a closed hand fist with the intent to cause her pain and that any reasonable person would realize that he was putting her at risk of suffering bodily harm. The bruising, black eyes, and bloody nose are all injuries that demonstrate violence. There was also blood found on Mr. Palmer-Coke's shirt that was seized during the search of his residence, his DNA profile was on the gum in the room, and his fingerprint was located on the bottle inside the room. Mr. Palmer-Coke had no option but to admit that he was there and that he had caused the injuries to Ms. T.

[53] The Crown asks that Ms. T's version of events be preferred and argues that there is evidence that the assault occurred in circumstances of a sexual nature. The Crowns asks this court to find that Mr. Palmer-Coke punched Ms. T to stop her from calling someone, to make her listen to him, and to restrain her from leaving the hotel room after he had ripped off her panties.

[54] Ms. Edward submits that, given the blood alcohol content of Ms. T at the relevant time of 1:30 a.m., she was very intoxicated and it is understandable that she suffered black-outs or grey-outs. She cannot recall why she had to leave the bar, the taxi ride back, where her purse was, when she met Mr. Palmer-Coke, or that she called N.C. on the phone. However, she is able to recall many of the details. The toxicology expert explained that when there is a traumatic event, the body receives an adrenalin rush and, therefore, the person, although highly intoxicated, can remember certain events that occurred. In this case, her memory begins when Mr. Palmer-Coke was grabbing the telephone and attacking her. Her outline of what occurred next is consistent between the videotaped statement and her testimony at the preliminary hearing and at trial. The Crown argues that Ms. T's version of events should be believed by this court as it is corroborated in many ways.

[55] The Crown submits that in applying R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, I should not believe the evidence of the accused and it should not leave me in a reasonable doubt, and that, on all the evidence led, I should not have a reasonable doubt about the guilt of Mr. Palmer-Coke.

The Defence

[56] Counsel for Mr. Palmer-Coke submits that he should be found not guilty of all charges. She points to the presumption of innocence and that the accused is entitled to a reasonable doubt. She submits that this court cannot be sure that Mr. Palmer-Coke committed the offences. She points to examples in the evidence where witnesses aligned themselves to the Crown's side, such as: the evidence of Police Constable Prodeus, whom she called and who was reluctant to adopt his notes; Detective Ward, who wrote down a description of a white male and was trying to find ways to justify the error; V.V., who did not want to admit certain parts of her statement to police about the complainant's drinking habits; and Shawn Quilty, who never mentioned in his description of the person given to police that he was a black person but later said he was an "African American male."

[57] The defence submits that Mr. Palmer-Coke was 19 years old at the time of the incident, was going to school and working, and was close to his mother. While the Crown tried to suggest certain bad character traits, the defence submits that Mr. Palmer-Coke did not have a criminal record, respected his mother, and was hard-working.

[58] Counsel points to the timing of the violence. She says there is no issue that Ms. T was injured. According to the Crown, the punching, pushing, and kicking happened when Mr. Palmer-Coke was trying to remove Ms. T's clothes and ripped off her panties. However, Ms. Bygrave says there were no scratches or defensive injuries on Mr. Palmer-Coke three days later.

[59] Counsel also points to Mr. Palmer-Coke's behavior after the incident. First he went to the elevator but then he left and went to the front desk. He texted his mother at 1:47 a.m. saying "some drunk girl was acting crazy and telling me to fuck her. Then she acted all crazy."

[60] Counsel submits that when Ms. T described her injuries, she said that she was punched repeatedly. She said the same to Shawn Quilty and told the police officers that she was punched in the face. Not once did she say she was sexually assaulted until Detective Ward asked, "Did he try to have sex?" and she said he tried to take her pants off. In the hospital notes taken by the nurse, there is also reference to a black male punching in the face and that she was rescued by another male. Counsel argues that there was no mention of a sexual assault and that Mr. Palmer-Coke was an unsophisticated young man who was with a woman who invited him to her room and that, once she suddenly said "who are you?", he tried to make sense of it.

[61] Ms. Bygrave points out that Ms. T had memory lapses and could not say how her underwear was removed. She argues that it is not possible to say where the true memories begin and where possible false memories begin. She submits that this court cannot have confidence that what Ms. T said she remembers is credible enough to be certain of what took place. Counsel submits that the complainant's memories are unreliable.

[62] Counsel for Mr. Palmer-Coke also submits that the complainant's evidence lacks credibility and reliability due to the many inconsistencies and omissions in her evidence. For example, she described her assailant as a white male and then as a brown male. She also described him as someone who was 24 years old and then as someone who was 30 years old. She told Mr. Quilty that she met the man at the club and brought him back to her room. She was also sure that she had her purse with her; however, her friend Savannah said she brought her purse back from the club.

[63] In addition to those internal inconsistencies, counsel for Mr. Palmer-Coke argues that the court must consider the competing versions of events. In that Mr. Palmer-Coke testified in his own defence, the court must apply the analysis in R. v. W.D. when considering the credibility of the witnesses. Counsel submits that the version of events described by Mr. Palmer-Coke, that he and Ms. T had consensual sexual relations, makes sense. The fact that Ms. T's shoes were found between the two beds and that her telephone was found on the floor of the room also makes sense given what Mr. Palmer-Coke testified. Counsel argues that Ms. T lied about how much she drank the night before the incident and her exposure to alcohol in the past. Given that Ms. T was confused about the events of the evening, counsel submits that I cannot be sure of what took place.

[64] On the issue of consent, counsel argues that, given the blackouts of memory of Ms. T, the Crown cannot prove the lack of consent beyond a reasonable doubt. Further, on the issue of drunkenness, counsel argues that Ms. T looked normal when she got out of the taxi and entered the hotel. She did not stumble and she walked through the lobby to the elevator. On her own evidence, Ms. T had twelve drinks but said she was not that intoxicated and knew her limits. Counsel submits that the videotape of Ms. T walking in the lobby is the best evidence of how she presented to Mr. Palmer-Coke regarding her level of intoxication.

[65] Counsel submits that there was no way that Mr. Palmer-Coke could know that Ms. T was so drunk that she could not consent. Accordingly, counsel argues that Mr. Palmer-Coke had an honest but mistaken belief that the complainant was consenting to the sexual acts.

ANALYSIS AND THE LAW:

[66] In considering whether the Crown has met its onus, I apply the following principles. First, Mr. Palmer-Coke is presumed to be innocent unless the Crown has proven his guilt beyond a reasonable doubt. The burden rests upon the Crown throughout. A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not enough to believe that Mr. Palmer-Coke is probably or likely guilty. That is not guilt beyond a reasonable doubt. If I am sure that Mr. Palmer-Coke committed the offences, then I am to find him guilty. If at the end of the case, based on all of the evidence or the lack of evidence, I am not sure that he committed the offences, then I am to find him not guilty.

[67] In that Mr. Palmer-Coke elected to testify on his own behalf, I must apply the principles enunciated in the case of W.D. as follows: if I believe his evidence that he did not commit the offences charged, I must find him not guilty. Even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt or about an essential element of the offences charged, I must find him not guilty of the offences. Even if his evidence does not leave me with a reasonable doubt of his guilt or about an essential element of the offences charged, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[68] There is no onus upon Mr. Palmer-Coke to prove anything. The onus rests upon the Crown throughout to prove the offences beyond a reasonable doubt. The court is not to weigh and compare conflicting versions of the events. The court is to assess all the evidence and determine whether the Crown has met its burden.

[69] In order to find Mr. Palmer-Coke guilty of the offence of sexual assault causing bodily harm contrary to s. 272(1)(c) of the Criminal Code, I must be satisfied beyond a reasonable doubt of each of the essential elements of the offence, namely:

1. that Mr. Palmer-Coke intentionally applied force to Ms. T;

2. that Ms. T did not consent to the force that Mr. Palmer-Coke intentionally applied;

3. that Mr. Palmer-Coke knew that Ms. T did not consent to the force that Mr. Palmer-Coke intentionally applied;

4. that the force that Mr. Palmer-Coke intentionally applied took place in circumstances of a sexual nature; and

5. that the force that Mr. Palmer-Coke intentionally applied caused bodily harm to Ms. T.

[70] Consent, as defined in s. 273.1(1) of the Criminal Code, means that there was a voluntary and informed agreement of the complainant to take part in the sexual activity in question. Under s. 265(4) of the Criminal Code, where an accused alleges that he believed that the complainant consented to the sexual activity, the court must be satisfied that the accused had an honest but mistaken belief. "[B]efore a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence:" R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, 116 C.C.C. (3d) 289, at para. 15. Where there is an air of reality to the defence, the "Crown bears the burden of persuading the jury beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she was consenting or not:" R. v. R. (J.D.), 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, 33 C.C.C. (3d) 481.

[71] A person cannot consent to the infliction of bodily harm or violence in the context of sexual acts where bodily harm is both intended and caused: R. v. Zhao, 2013 ONCA 293, at para. 108. However, "[w]here the accused did not intend to cause bodily harm, consent is available as a defence, if bodily harm is inadvertently caused:" Zhao, at para. 108.

[72] In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, 49 O.A.C. 47, the Supreme Court considered the meaning of s. 264.1(1)(a) of the Code concerning "serious bodily harm" and said that it means any "hurt or injury, whether physical or psychological, that interferes in a substantial way with the integrity, health or well-being of a victim."

[73] In R. v. Dixon (1988), 1988 CanLII 2824 (BC CA), 42 C.C.C. (3d) 318, 64 C.R. (3d) 372 (B.C.C.A.), the court held that the trial judge misdirected himself on the meaning of "bodily harm" and that bodily harm does not require interference with a victim's health or comfort. There, the victim suffered a two to three inch laceration which healed in ten days.

[74] In R. v. MacLeod, 2002 NSCA 24, the court dismissed an appeal from a conviction for causing bodily harm while committing a sexual assault where there was a violent struggle between the complainant and the accused and she suffered bruises to her neck and wrists as well as cuts to her face. She was terrified that the accused would kill her. The court held that there was evidence from which a jury could be satisfied that the sexual assault caused the complainant bodily harm, including psychological harm, and the physical injuries were not trifling.

[75] In R. v. M.R., 1998 CanLII 2146 (ON CA), [1998] O.J. No. 737, 107 O.A.C. 233 (C.A.), the accused pleaded guilty to the offence of sexual assault causing bodily harm where the evidence was that he confronted the complainant, threw her on the bed and demanded sex, choked her and ripped off some of her clothes, and prevented her from using the telephone when she refused. During the altercation, the complainant suffered a bloody nose, a swollen right eye, her neck was scratched, and her throat was hurt. She also complained about being very stiff.

[76] In R. v. C.K., 2001 BCCA 379, the accused was convicted of sexual assault, assault causing bodily harm, assault, and sexual molestation where the complainant testified that the accused caused bruising and a small tear to her anus, injured her nose which deviated her septum, and caused bruising and swelling for a few days. The doctor thought that sort of injury would be caused by some sort of trauma. It was alleged that, during the sexual assault, the complainant screamed out causing the landlord to attend at the apartment and the police to attend later that day.

[77] The Crown raises the issue that the complainant may have been so intoxicated that she could not consent to the sexual acts. Section 273.1(2)(b) states, "No consent is obtained…where the complainant is incapable of consenting to the activity." Clearly, if a person is so intoxicated that she is incapable of consenting to the sexual activity, the accused cannot rely on her consent.

[78] In R. v. Dennison, 2002 NSSC 222, the court held, at para. 50, that "…in order to be found to have lacked the capability of consenting, the complainant must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate." What is relevant is evidence of consumption and extreme intoxication and whether the accused knew how much the complainant had consumed and the effects on her. In R. v. Cedeno, 2005 ONCJ 91, at para. 18, the court stated:

…Cases where the complainant is said to be incapable due to consumption of alcohol…are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. [Citations omitted]

[79] The evidence led by the Crown in this case was that Ms. T may have consumed ten to twelve shots of vodka with water over the course of the evening. According to her girlfriends, she was very intoxicated while at the club, had been sick in the bathroom, and was ejected from the club. Ms. T had no memory of being ejected from the club because she was so intoxicated. She also had no memory of arguing outside the club after she was kicked out. While someone put her in a taxi, she was able to speak on the telephone, get out of the taxi without stumbling, and enter the hotel on her own. She did not recall speaking on the telephone in the taxi but acknowledged that her telephone showed a call at 1:29 a.m. to her friend Jessica. She had no memory of being in the lobby, meeting Mr. Palmer-Coke, entering the elevator, and then entering her room with him. On the one hand, she had the ability to find her card key, ride up to the sixth floor, and open the door to the correct room. On the other hand, she did not recall meeting him, riding in the elevator, and having her arm around him and his arm around her. She said that what happened in the room is "burned in my brain." She had no memory of telling Mr. Quilty that she met her attacker at the club and brought him to her room. She also had no memory of saying that she entered the room and the man forced his way in. She believed she brought her purse back to the hotel but it was put to her that another friend, Savannah, brought the purse back as she left it at the club. She also did not recall telling Officer Ward that the male was white or telling Police Constable Lan that the male was brown.

[80] The fact that the complainant has no memory of the incidents does not equate with an absence of consent: R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, 116 C.C.C. (3d) 289; R. v. J.R. (2006), 2006 CanLII 22658 (ON SC), 40 C.R. (6th) 97, [2006] O.J. No. 2698, at paras. 17-19. In the case of R. v. Hendry (1997), 1997 CanLII 3344 (MB CA), 123 Man. R. (2d) 237, 159 W.A.C. 237 (Man. C.A.), at para. 9, the Manitoba Court of Appeal held that it would be dangerous to convict where the complainant was unable to recall what transpired because of intoxication and where the accused claimed the sex was consensual.

[81] In R. v. Barseghian, [1996] O.J. No. 2316, 1996 CarswellOnt 2555 (Ont. Ct. J. Gen. Div.), the court held that there was no evidence regarding the victim's incapacity so as to raise a triable issue under s. 273.1(2)(b). The complainant had little memory of events and could not remember having sex with anyone. The accused testified that the complainant willingly got into the cab with them, and then had gone to their room where she took off her clothing. The court held that there was no evidence on which a jury could conclude that there was the absence of consent.

[82] In R. v. Faulkner (1997), 1997 CanLII 1193 (ON CA), 104 O.A.C. 290, 120 C.C.C. (3d) 377 (C.A.), the Court of Appeal allowed the appeal and ordered a new trial on the charge of sexual assault where there was no evidence led at trial that the ingestion of drugs and alcohol by the complainant had reached the point of rendering her incapable of consenting. The court noted that the trial judge did not have regard to evidence clearly relevant to the complainant's capacity to consent which included that she was aware of her curfew, able to decide when to go home, how to go home and with whom, and recalled the conversation on the drive home and what went on in the car.

[83] Mr. Palmer-Coke is further charged with the offence of forcible confinement contrary to s. 279(2) of the Criminal Code. In order to find Mr. Palmer-Coke guilty of the offence of forcible confinement, I must be satisfied beyond a reasonable doubt:

1. that Mr. Palmer-Coke intentionally confined KT; and

2. that the confinement was without lawful authority.

[84] To intentionally confine another person is to physically and coercively restrain that person contrary to her wishes, thereby depriving that person of her liberty to move from one place to another. Confinement is an unlawful restriction on liberty for some period of time. It does not have to be in one particular place. The accused must intend to restrict the complainant's freedom to move about. "Lawful authority" means a power or right that the law authorizes or permits someone to exercise. A confinement is without lawful authority if it is done by someone in circumstances that the law does not permit.

DECISION:

[85] In this case, the issue is whether I am satisfied that the acts alleged by the complainant took place and whether the elements of the offence of sexual assault causing bodily harm and of unlawful confinement are made out by the Crown beyond a reasonable doubt. In deciding whether the Crown has proven these elements, I consider all the circumstances, the nature of the contact between the parties, their words and gestures, and their conduct together.

[86] This case involves an assessment of the credibility of the witnesses. Where evidence for the Crown is dependent on the testimony of the complainant, it is essential that it be tested in light of all the evidence presented. This means that discrepancies are to be noted and inconsistencies addressed, and that issues raised by the defence at trial (including submissions with respect to motive for fabrication) must be assessed in light of all the evidence: R. v. C.(J.) (2000), 2000 CanLII 1931 (ON CA), 131 O.A.C. 230, 145 C.C.C. (3d) 197 (Ont. C.A.).

[87] In applying the "common sense" approach to the evidence of witnesses, I am required to note and apply a distinction between the credibility of a witness and his/her reliability: see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.), at 205-6. In considering the demeanour of witnesses, I look at their responses to questions asked, their explanations when confronted with alternative scenarios, their willingness to consider suggestions that are contrary to their interest, and any evidence of bias or motive to fabricate. I look at the witness' memory of the events, ability to recall, the precision of their evidence, and their opportunity to observe. I must also note that findings of credibility may not be made on the basis of demeanour alone: R. v. L.(R.G.) (2004), 2004 CanLII 32143 (ON CA), 185 C.C.C. (3d) 55, 186 O.A.C. 355 (C.A.).

[88] I have considered the evidence of the complainant and the accused, as well as the evidence of the other witnesses called. I have also considered the opinions of the experts and the admissions made by counsel.

[89] Regarding the issue of capacity to consent, I note that the determination of whether a complainant lacked the capacity to consent by reason of intoxication is very fact-specific. Even with evidence of extreme intoxication, incapacity may not be found where there are specific acts that demonstrate the complainant's ability to make decisions. This issue and the relevant case law was considered by Greene J. in R. v. Tariq, 2016 ONCJ 614. At para. 94, she stated:

What stands out from all these cases, is that consent to sexual acts does not require a high level of consciousness…Bad decisions based on loss of inhibitions due to intoxication is not enough to meet the test for incapacity. Moreover, the court cannot conclude incapacity to consent from the mere fact that the complainant is effectively falling down drunk…In order to make a finding of incapacity to consent, the case law suggests that the court must be able to identify evidence that establishes, beyond a reasonable doubt that the complainant's cognitive capacity is sufficiently impaired by the consumption of alcohol so as to make her incapable of knowing that she is engaging in a sexual act or that she can refuse to engage in the sexual act.

[90] In the circumstances of the case at bar, I am not satisfied beyond a reasonable doubt that Ms. T was so intoxicated during the early morning of July 22, 2012 that she lacked the ability to consent to any sexual acts. In reaching this conclusion, I have considered that Ms. T had consumed more alcohol than she was accustomed to, had a very high blood alcohol level at the time of the incident, and showed signs of intoxication. I also note that she remembered certain events with great detail and had no memory of other events.

[91] As the case law establishes, the threshold for incapacity to consent is very high. In the current case, there is video evidence demonstrating that the complainant did not stumble when exiting the taxi and was able to walk to the elevator. While she drank approximately twelve vodka waters on the night of the incident, the complainant herself told police that she was fine. She also testified that she fought back, resisted the accused, and kneed him in the groin more than once in order to escape. In my view, it cannot be said that the complainant's cognitive capacity was sufficiently impaired so as to render her incapable of knowing that she could refuse to engage in sexual acts: see Tariq, at para. 94.

[92] In conclusion, given the specific circumstances of this case, I find that the Crown has not established beyond a reasonable doubt that the complainant lacked the capacity to consent. The complainant's own evidence negates any reasonable basis for such a finding: see R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430, 90 O.A.C. 183 (C.A.), at para. 13.

[93] However, I find that Ms. T did not consent in the circumstances of the case. I find that Ms. T entered the hotel at approximately 1:26 a.m. in an intoxicated state and was not focused on the people with whom she was coming into contact. She bumped into Mr. Palmer-Coke, who had also entered the hotel, and he assisted her to the elevator and up to the sixth floor. He followed her into her room, perhaps thinking that this was an opportunity to be with a woman who was friendly and alone. When she looked up at him and asked "who are you?" and told him to leave, he became upset. He thought that he had made a connection with her. His anger increased as she tried to use her telephone to reach out to a friend. Her friend overheard her ask him to leave.

[94] I do not believe Mr. Palmer-Coke regarding what happened next. "Evidence of an accused's words and conduct after a crime has been committed may provide circumstantial evidence of an accused's complicity in that offence": see R. v. Shafia, 2016 ONCA 812 at para. 284. In Shafia, the Court of Appeal cited that, "Contradictory exculpatory statements of an accused both (or all) of which cannot be true may also constitute independent evidence of fabrication: R. v. Andrade (1985), 1985 CanLII 3502 (ON CA), 18 C.C.C. (3d) 41 (Ont. C.A.), at paras. 82-83; Hubin v. The King, 1927 CanLII 79 (SCC), [1927] S.C.R. 442, at pp. 445-446; R. v. Samuels (2005), 2005 CanLII 15700 (ON CA), 196 C.C.C. (3d) 403 (Ont. C.A.) at para. 37, leave to appeal refused, [2005] S.C.C.A. No. 313. I find that Mr. Palmer-Coke threw Ms. T to the bed and ripped off her underwear. In doing so, he touched her on parts of her body with the intention of engaging in sexual acts with her. He then punched her as she tried to run out of the room. He grabbed her by the hair and she fell back and hit her head. He then punched her again. Denise Isaac, who was also staying at the hotel, heard Ms. T's screams as she tried to break away. Ms. T kicked Mr. Palmer-Coke in the groin and managed to run through the door into the arms of Shawn Quilty, who happened to be getting out of the elevator at the sixth floor.

[95] Applying the definition of bodily harm set out in the Code, "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature," and the jurisprudence to the case at bar, I am satisfied beyond a reasonable doubt that the Crown has proven the essential element of this offence concerning bodily harm. The testimony of the witnesses and the photographs establish the extent of the bruises, swelling, cuts and bleeding. Ms. T also screamed and yelled to stop the pain being administered to her by Mr. Palmer-Coke. According to the medical examination, Ms. T suffered abrasions on her knees, the back of the elbow, and swelling and bruising around the eyes, with the full eyelid swollen on the right eye and redness and swelling on the left eye.

[96] Even on Mr. Palmer-Coke's own evidence at trial, in which he admitted that he punched Ms. T twice and caused injuries to her face and eyes, he would be found guilty of assault causing bodily harm. However, I am satisfied beyond a reasonable doubt that he wanted to have sex with Ms. T and acted on this by ripping her panties against her will, touching her in the vaginal area, and trying to pull down her dress. These were circumstances of a sexual nature.

[97] I find the evidence of the complainant to be consistent, persuasive, forthright, credible, and compelling. Although these events occurred five years ago, she has a detailed memory of certain events that occurred on the night in question. The evidence of the telephone call to her friend N.C., the evidence located in the room including the table that was knocked over, the evidence concerning the tear to her panties, the evidence concerning her injuries, the evidence of the bloody shirt belonging to Mr. Palmer-Coke, the evidence of Denise Isaac who heard her screams, and the evidence of Shawn Quilty, who collided with Ms. T as she ran into the hall, also corroborate Ms. T's evidence.

[98] Any inconsistencies pointed out by counsel for Mr. Palmer-Coke between her videotaped statement to police, her evidence given at the preliminary inquiry, and her evidence at trial were of an extremely minor nature. There were minor inconsistencies between what she said she did or said and what others said she recounted to them. There is no question that she has lapses in her memory and her ability to recount events, which were caused by her level of intoxication. However, those gaps in memory do not mean that I should find Ms. T's evidence to be unreliable. As Dr. Langille testified, the adrenalin that occurs with a stressful event may increase a person's state of alertness even when they are extremely intoxicated.

[99] It was also put to Ms. T in cross-examination, and to the officer who took her statement, that she did not cry when she recounted the events of the night until the officer showed her a photograph of her walking through the hotel lobby arm in arm with a person she had just met. I note that everyone reacts differently and that there is no one appropriate way to react. Such myths have no place in sexual assault trials. As stated by the Supreme Court of Canada in R. v. Shearing, 2002 SCC 58, at para. 121, sexual assault cases "should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma:" see also R. v. D.D., 2000 SCC 43, at para. 65.

[100] In applying W.D., I do not believe Mr. Palmer-Coke's evidence that he did not commit the offences charged. His evidence does not leave me with a reasonable doubt about his guilt or about an essential element of the offences charged. The rest of the evidence that I do accept proves Mr. Palmer-Coke's guilt beyond a reasonable doubt. I find that the Crown has established that there was touching in a sexual manner of Ms. T by Mr. Palmer-Coke, that it was done without her consent, and that, in the course of this, Mr. Palmer-Coke intentionally caused bodily harm. Having considered the words and conduct before, at the time, and after the accused applied force to the complainant, I find that the defence of honest but mistaken belief cannot succeed in the circumstances of this case. Taking into account the words and gestures that happened, I find that Mr. Palmer-Coke did not have an honest belief that Ms. T consented to sexual activity. Finally, I find that Mr. Palmer-Coke confined Ms. T without lawful authority and that Ms. T did not consent to such confinement. He prevented her from leaving the room, grabbed her by the hair, pulled her back, striking her head, and made efforts to restrict her liberty.

CONCLUSION:

[101] In conclusion, I am not satisfied that the Crown has established beyond a reasonable doubt that the complainant lacked the capacity to consent. However, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Palmer-Coke assaulted Ms. T in circumstances of a sexual nature, that she did not consent to these sexual acts, and intentionally caused her bodily harm. I am also satisfied beyond a reasonable doubt that he confined her with force and deprived her of her liberty. For these reasons, I find Mr. Palmer-Coke guilty of the offences charged.

Himel J.

Released: July 25, 2017