PUBLICATION BAN

Any information contained herein which might tend to identify the complainant is prohibited from publication pursuant to the Order of Justice Ducharme made on February 21, 2017.

REASONS FOR JUDGMENT

Mr. Menezes stands charged that, on or about May 29, 2014, he did commit a sexual assault causing bodily harm on A.B. Mr. Menezes is also charged with unlawful confinement of A.B. on the same date. Finally he is charged with possession of cocaine. He elected to be tried by a Judge sitting alone and entered a plea of not guilty to all charges. On April 28, 2017, I convicted Mr. Menezes of all of the charges. These are my reasons for judgment.

GENERAL PRINCIPLES OF LAW

Prior to reviewing the evidence in this trial, I wish to briefly outline some of the fundamental principles of our criminal law that I must apply in this case.

Burden on the Prosecutor

It is for the Crown to prove beyond a reasonable doubt that the acts alleged occurred and that Mr. Menezes committed them. Mr. Menezes does not have to prove that the events never happened. Mr. Menezes need not prove anything. The issue in this case is narrow, that is, has the Crown proven beyond a reasonable doubt that the alleged offences occurred and that Mr. Menezes did them.
The phrase "beyond a reasonable doubt" is not an ordinary expression. It is a term that has been used for a very long time and is an important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. 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 a doubt about an essential element of the offences charged.
This standard is a formidable one. Proof beyond a reasonable doubt is closer to absolute certainty, rather than a balance of probabilities: see R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.) and R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C).

Presumption of Innocence

The presumption of innocence means that Mr. Menezes started this trial with a clean slate. The presumption stays with him throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that Mr. Menezes is guilty of the crimes charged. The presumption of innocence also means that Mr. Menezes did not have to testify, present evidence or prove anything in this case. In particular, Mr. Menezes does not have to prove that he is innocent of these crimes.

Assessment of Evidence Generally

It is not proper, in a case such as this, for a trial judge to simply decide whether or not he believes the evidence of the complainant and, on that basis, reach a conclusion of guilt beyond a reasonable doubt. The totality of all of the evidence must be examined in a cumulative way to determine if there is a reasonable doubt notwithstanding the apparent credibility of the complainant: see R. v. Richardson (1992), 1992 7710 (ON CA), 9 O.R. (3d) 194 (C.A.); R. v. M.(P.) (1983), 1983 5316 (ON CA), 31 C.R. (3d) 311 (Ont. C.A.).

Review of the Evidence

The resolution of this case requires me to assess the reliability and credibility of primarily A.B. and Mr. Menezes. The Court may believe all, none or some of a witness' evidence. However, a determination of guilt or innocence must not devolve into a mere credibility contest between two witnesses in a trial. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt. Equally, it must be acknowledged that mere disbelief of the accused's evidence does not satisfy the burden of persuasion on the Crown. This principle applies to the testimony of the accused and the defence evidence. The Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. In other words, in a criminal case it is inappropriate to determine a verdict by asking simply, "Whom do I believe?"
In assessing the evidence, I must do so in a global fashion, assessing the evidence cumulatively and as a whole. Once I have done that, my deliberations should be guided by the three step approach set out by Cory J. in R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742.

Step One

If I believe Mr. Menezes’ evidence that he did not commit the offences charged, then I must find him not guilty.

Step Two

Even if I do not believe Mr. Menezes’ 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 that offence.

Step Three

Even if Mr. Menezes’ 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 of these offences beyond a reasonable doubt.

Significance of Demeanour

In assessing the credibility of witnesses, it is important for a trial judge to keep in mind the caution of O'Halloran J.A in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 at p. 357 (B.C.C.A.), "[t]he law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses." It is an error to make a credibility determination based solely on the demeanour of a witness. While the demeanour of a witness is a factor that may be considered, it is only one factor to be considered in the context of a cumulative assessment of all the evidence. As O'Halloran J.A stated in Faryna v. Chorny, supra, at p. 357 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Emphasis added.]

Thus, while I can properly consider the demeanour of any witness in assessing his or her credibility, my assessment of his or her credibility turns on a broader assessment of his or her testimony. Whether it is consistent, whether it makes sense or is inherently hard to credit, and how it ties in to all of the evidence in the case.

THE CASE FOR THE CROWN[1]

911 Call

It is admitted that a 911 call from A.B. was received on August 21, 2014 at 00:07:54 a.m. and it lasted until 00:35:55 a.m. A.B. reported that she had been “raped and kidnapped and tortured.” She said she did not remember getting there but she remembered him trying to force her clothes off. She was yelling no and he was saying that she was a slut, she was dirty and she should be raped. He said he would kill her, he would kill her father or anyone else who tried to help her.

A.B.

In August 2014, A.B. was 25 years of age. She was a single mother living with her parents. She was addicted to crystal meth from December 2013 to November 2014. She usually injected it although she had also smoked it or snorted it. She was also taking Zoloft and clonazepam for anxiety as needed. She no longer uses drugs and she is now clean. She has been diagnosed as having a borderline personality disorder and she has a fear of abandonment. She also cut herself when she was younger.
On August 20, 2014, A.B. was supposed to meet her new boyfriend, Jessie, and get drugs, GHB, which was Jessie’s drug of choice. She went to her parents’ house for the first time in two or three days. She showered and changed her clothes and did some crystal meth. She had been using crystal meth for a year, usually daily although she would sometimes take a week off. She injected a point of a gram which she described as a very small amount. She agreed that she might have taken two points of crystal meth on August 20. She described the effects of crystal meth as giving a person a sense of euphoria for one or two hours and a lot of energy for a few more hours. You are very up and nothing bothers you. She was supposed to meet Jessie at the corner of Dundas and Dufferin and it was dark when she left the house.
A.B. went to the southwest corner of Dundas and Dufferin and waited for Jessie for two hours and he did not show up. It was raining and A.B. was crying. She was not sure how long she waited for Jessie but she agreed that the longer she waited the more upset she became. She had energy although she had not slept the night before and she was not sure if she had slept the night before that. She started to walk to her parents and when she walked by a bar she asked a woman outside of the bar for a cigarette. A.B. said that her bag had broken and the lady said that they should have some bags in the bar. The lady offered to buy her a drink and A.B. agreed and went into the bar. There were two or three people in the bar. A.B. asked the bartender for a plastic bag and ordered a 7 Up grenadine and vodka. She then sat by a table at the front window with the lady and they talked about men.
They left the bar for a cigarette and when they returned there were four tequila shots on their table. A.B. did not know who ordered them or if anything was said about them. She and the lady had one each and she did not recall what happened to the others. She did not know if she had a second shot.
A.B.’s next memory was waking up in an apartment with a man on top of her. She had not been in the room before and she did not know who the man was. The man was penetrating her vagina with his penis. Her hands were above her head and he was holding her down by the wrists. She could not remember if her pants were down or completely off. She started screaming for the man to get off. He told her to shut up. She tried to push him off, to hit him in the back or to wiggle out. He said he was going to put his penis in her butt and A.B. said she would stop resisting if he did not. The man kept penetrating her. He punched her in the head several times. She could not remember the words he used, if the man had an accent, how long the vaginal penetration lasted or whether or not the man used a condom or ejaculated. She was wearing her shirt and bra but she did not know where the rest of her clothes were. The man said he could kill her. He talked about his daughter who was 11 or 13 years of age. He said some derogatory stuff about women and called A.B. a bitch and a whore.
During or after the penetration A.B. saw some material relating to LIUNA, Local 502 and said that her dad worked for the union. The man was sitting in a chair and she was on the bed trying to get dressed and leave. He said that he would kill her dad. She replied that her dad would kill him and he laughed. He also said that he had killed other people. She got to the door and unlocked it and ran downstairs and then ran next door into the Domino’s Pizza store. She did not know if the man was upset when she left. She did not know what his state of mind was.
A.B. identified a variety of photos of her injuries. She had bruises on her face and both arms. The bruises hurt for approximately two weeks. Her head hurt, her wrists hurt and her knees hurt. All of these injuries were from the sexual assault. She also identified photos of her earrings in Mr. Menezes’ room. She also identified herself walking in a video although she had no memory of going to Mr. Menezes’ room.
A.B. did not remember much about being at the hospital, although she testified that she did not refuse to have a vaginal speculum examination. In re-examination, she also said that she did not know what a speculum is nor did she recall talking about a speculum at the hospital. The parties have agreed that A.B. did refuse such an examination.
A.B. said that she had also been sexually assaulted in January of 2014. As a result, she suffered from panic attacks, depression and anxiety and she coped by using drugs. She agreed that she may have used 5 or 6 points of crystal meth in the two preceding days and that she would inject it in her arms and it could leave bruises. She also admitted that she had abused alcohol when she was younger and suffered blackouts and that when using alcohol she sometimes made bad errors.

Inez Genereaux

Inez Genereaux is a 25 year old woman who works for a clothing company and a bar. She has worked at the bar for three years, the last year as a server. As part of her training she completed SmartServe, an online training course.
Ms. Genereaux was driving home with her boyfriend on Dundas Avenue when she saw a man and a woman on the south side between Sheridan and Lansdowne. She described the man as dragging the woman who appeared unable to walk or carry herself. Her legs and heels appeared to be being dragged along the ground and she appeared extremely intoxicated.
Ms. Genereaux said it looked like they needed help so she got her boyfriend to turn the car around and they pulled the car over and she spoke to them. She asked, “What is going on here? Is everything OK?” and she asked the woman, “Are you OK?” The man said everything was fine. She described the woman as being unable to answer her as she appeared too intoxicated to speak. The woman eventually said, “Yeah, yeah, it’s fine” and her speech was slow and slurred. She asked the man if he needed any help and he replied that “It’s fine, I know her. We are leaving now and I am taking her home.” She did not remember them falling, although she said the woman was not standing upright for any of this.
When Ms. Genereaux last saw them, they were on the south side of Dundas near Sheridan. She said the sidewalk was not busy with other pedestrians. Five or ten minutes later, she called 911 to report what she had seen.
In cross-examination, Ms. Genereaux said she saw the couple approximately 30 seconds before she spoke to them. When she spoke to them, she was six to ten feet away and she could not smell alcohol. She spoke to them for less than a minute.

P.C. McMaster

P.C. McMaster is a member of the MTPS and on August 14, 2014, he was working with P.C. Ashkar. They received a call at 12:40 a.m. and they were on scene by 12:46 a.m. When they arrived A.B. was in the ambulance with Paramedics. P.C. McMaster said that A.B. seemed really disorientated (sic) and was really rough looking. She had some bruising on the left side of her face, her eyes were bloodshot and she looked like she had been drinking as well. He spoke to her and she was crying and upset and her speech was not normal, although he could not remember if it was slurred or just really slow.
P.C. McMaster was in the ambulance as A.B. was taken from the scene. At 1:51 a.m., A.B. identified the bar she was at. They stopped the ambulance and got out and retrieved some clothing left outside the door. They arrived at the hospital at 1:58 a.m. A.B. was seen by a doctor and some nurses and her clothing was bagged by the police and consisted of a blouse; tights; bra; and a pair of shoes.

P.C. Ashkar

P.C. Ashkar is a member of the MTPS and on August 14, 2014, he was working with P.C. McMaster. When they arrived at the scene, he got into the ambulance. A.B. was hysterical and crying. She had bruising on her face and her arms and her left shoulder. She had swelling on the right side of her face and her forehead.

P.C. Nigel Ridgely

P.C. Ridgely has been with the MTPS for just over two years on August 21, 2014 and he was working in the early morning with P.C. Cerqueira. At 12:42 a.m. they got a radio call from 1671 Dundas Street West about a woman reporting that she had been raped. They arrived at 12:46 and found two other officers speaking to the complainant who was in the ambulance. They looked in through the door of 1673 Dundas Street West and they saw a pair of the complainant’s sunglasses on the floor. P.C. Ridgley then went to the rear of the address. He was told to remain at the rear of the address.
At 1:40 a.m. he observed a male approaching the rear of 1673 Dundas Street West. The male approached P.C. Ridgely who asked where he was coming from and the male replied “the bar” and said he was going home to apartment 3. P.C. Ridgely detained the male for investigation. The male identified himself as Jose Menezes and gives his birthdate of December 7, 1968. Mr. Menezes said he was at a bar at Sheridan and Dundas St. West. He was there from 9 pm until 1 am. He was walking around the neighbourhood until he came back. He had not been home for over a day. Mr. Menezes says he was at his girlfriend’s the night before. He said he cannot be arrested for walking around. He said he did not know this victim. P.C. Ridgely arrested Mr. Menezes.
At 11 Division, Mr. Menezes was paraded and then subjected to a Level 3 search. A long blonde hair was taken off of Menezes. When he was taking off his pants a small bag fell to the ground. A piece of tin foil was found in his change pocket that contained a Tylenol 3 and an APO B6.

Barbara Doupe

Ms. Doupe was qualified as an expert witness with respect to the assessment of textile damage. She examined a pair of lace underwear worn by A.B. There was a 22.5 cm continuous tear along the left front, three areas of broken stitches in the seam and the left side torn off the underwear and detached at the back. She testified that this was recent damage and that it was the result of the application of force. But she could not say when this was done, how much force was used or who applied the force.

Melissa Kell

Ms. Kell was qualified as an expert witness with respect to body fluid identification and DNA analysis. She examined A.B.’s underwear for blood, semen and saliva. The test she used for saliva was a test for amylase. She found a high amount of amylase in the front waistband of the underwear. She could not say whether the saliva was deposited on the inside or the outside of the underwear. There was a mixture of DNA from A.B. and from a male. Mr. Menezes could not be excluded as the donor of the male DNA and the random match probability is 1 in 8.5 trillion.

THE CASE FOR THE DEFENCE

Jose Menezes

Mr. Menezes testified that he was 48 years of age, having been born on December 7, 1968. In August of 2014, he was living in a room on the third floor of 1673 Dundas St. West. In 2005 he was classified as being legally blind in his right eye. He has worked at the Canadian National Exhibition for 8 years in the event services department and he is a member of Local 506.
On August 20, 2014, he went to work to pick up his cheque and he thinks that he worked. He left around 11:30 a.m. and went to a Money Mart at King and Dufferin to cash his cheque. He then went to a Beer Store and bought four tall boys of Molson Canadian. He then went to the Brockton Bar, arriving between noon and 12:30 p.m. He stayed at the bar until 3 or 3:15 p.m. and drank approximately five bottles of beer during that time.
Mr. Menezes then went to visit his daughter and her mother who live at Dufferin and College. He had a general conversation with her mother and drank two to three beers during this time. When he left he had one beer with him and he returned to the Brockton Bar between 5:30 and 6:30 p.m. and he stayed until approximately midnight. He resumed drinking and he had at least another five beers and two shots of tequila. He was originally talking to a woman named Nicole and three other men. He would leave the bar to have a smoke and there were always one or two people outside of the bar. He did not remember using drugs, although he said that if he had them he would have used them.
Mr. Menezes met A.B. outside the bar. She was having a cigarette and speaking to a short, stocky female. They began to speak and he told her that he was separated, that he had a daughter and that he worked for Local 506. A.B. went back into the bar and Mr. Menezes said he could have been chit-chatting with her and the other woman in the bar. They ended up outside the bar, sitting on a bench. A.B. initiated a kiss and he kissed her back. The bartender came out two or three times and told them to finish their drinks because the bar was closing.
Mr. Menezes asked A.B. if she wanted to come to his place to party. She did not say anything but the two of them began to walk west on the south side of Dundas. Just in front of a variety store A.B. fell on her right side, striking her face and right shoulder. She took Mr. Menezes down with her and he agreed that he may have landed on her. He did not know if either of them was injured from the fall. He said she had a hard time getting up after she fell and was, in fact, having a hard time standing up. They resumed walking to his place and he conceded that the video footage was likely the two of them. He had no memory of speaking to anyone. Mr. Menezes acknowledged that he knew A.B. was high because he saw her eyes were glazed. He referred to the two of them being “so bloody wasted.” Although later in cross-examination Mr. Menezes said that A.B. did not seem so drunk to him.
Mr. Menezes unlocked the front door 1673 Dundas St. West and they went through the second door. He said the two of them had a hard time climbing the stairs. He could not remember if the suite door was locked. He unlocked the door to his room. A.B. sat on the bed, dropping a bag at the side of the bed and he sat in a chair. Mr. Menezes agreed that he may have offered her either drugs or alcohol. He was not sure if they started talking but then she initiated a kiss.
Mr. Menezes said he kissed her mouth but he could also have kissed her neck and her face. He said he could have kissed her elsewhere but he did not remember. He did not remember if he had changed position but he could have lain down beside her. They were kissing for 30 seconds to a minute when A.B. freaked out and began to push him away and to lunge at him. He assumed he was hugging her but he did not remember. She was “possibly” grabbing his arms, his shoulders and his face. He held her arms between her shoulders and her wrists as she was attacking him. He tried to get her off him and he hit her and she fell to the floor. He cannot be sure if he hit her on the face, arms or shoulder. He did not remember if his hands were open or closed when he hit her. This struggle could have gone on for several minutes. He did not remember if she said anything. Mr. Menezes swore three times and told her to get the fuck out. She might have been in his room for a total of ten minutes. Mr. Menezes denied following A.B. down the stairs but said that five to seven minutes after she left, he exited his apartment by the rear door to go for a walk to clear his mind. Mr. Menezes denied that he left by the rear door because he knew that he had done wrong and that the police would be coming for him.
Prior to the struggle, Mr. Menezes did not remember either of them removing any clothes. He denied having vaginal intercourse with her and denied that his penis was ever exposed. He denied that her clothes were ever off and he denied saying he would put his penis in her butt. Mr. Menezes had no explanation for how his saliva got on A.B.’s underwear. He denied saying he was going to kill her, saying that his daughter and A.B. were the same and he did not call her a slut, whore or bitch. He did not say he was going to kill her father and she did not tell him that her father worked for the same union.
Under cross-examination, Mr. Menezes agreed that he had spoken to a police officer behind his home. He conceded that he might have said that “I am coming from the bar and I am going home to 1673 and I live on the third floor.” But he denied saying any of the following utterances: (1) “I was at a bar at Sheridan and Dundas from 9 p.m. to 1 am.”; (2) “I had not been home for a day”; (3) “I stayed at my girlfriend’s house the previous night”; (4) “I had no contact with the victim”; and (5) “I had no idea why I was being arrested and I cannot be arrested for walking around.”
Mr. Menezes agreed that during his interview with Det. Viera, he had made no mention of hitting A.B. following her freak-out and indeed he denied hitting her on the face after Det. Viera told him that she was badly bruised. He explained this by saying that he did not remember hitting her when he made the statement to Det. Viera. Mr. Menezes then said that he did not remember what had happened between the time of the freak-out and the time A.B. left his room.

ASSESSMENT OF THE EVIDENCE

There is no question that both A.B.’s and Mr. Menezes’ evidence is vague on many details. It seems clear to me that both of their memories are far from complete. However, on the crucial issue of whether or not there was vaginal intercourse I prefer the testimony of A.B.
Menezes does not remember much of the evening. Indeed, from the way he testified it is unclear whether he remembers something occurring or if he is just assuming that it did. There are a number of aspects of Mr. Menezes’ testimony that I reject.
First, I find that Mr. Menezes was lying when he said in cross-examination that A.B. did not seem that drunk to him. This is contradicted by his testimony that A.B.’s eyes were glazed and his admission that they were both “so bloody wasted.” It is also contradicted by the difficulty A.B. was having walking to Mr. Menezes’ room, which is evident from the videotape, from the description of the two of them by Ms. Genereaux and from Mr. Menezes’ own description of how she was walking. This case turns on the capacity of A.B. to consent and I find that Mr. Menezes’ testimony on this point was meant to suggest that she did have the capacity to consent.
Second, I reject his testimony that A.B. initiated a kiss when they were sitting outside of the bar on the bench and when she was sitting on his bed. I note that he does not remember any details as to how he kissed her back. I find this is an attempt to paint A.B. as the person who started the sexual contact between them.
Third, I note that Mr. Menezes is unable to describe where they were when A.B. fell or how the fall occurred. I think this description of the fall was meant to offer an innocent explanation for A.B.’s injuries.
Fourth, Mr. Menezes’ description of the struggle changes. When he spoke to the police that night, he denied having hit A.B. He testified that this was because he did not remember doing so. In his testimony before me he described A.B. flipping out; then he admitted restraining her and then he said he was pretty sure that he had hit her although he was not sure how he hit her or where he hit her. I find that he lied to Det. Viera about hitting A.B. in an attempt to appear innocent. I also find that his testimony cannot account for the injuries sustained by A.B.
Fifth, I do not believe that Mr. Menezes left his room to go for a walk to clear his mind. He left by the back door and I find that he left out of a concern that A.B. might report what had happened and the police might come to his place. I reject his testimony as to what he said to P.C. Ridgely and I prefer P.C. Ridgely’s testimony in this regard. I find that Mr. Menezes told a number of lies to P.C. Ridgely in an attempt to appear uninvolved in the assault on A.B.
Sixth, I note that Mr. Menezes was unable to explain either the injuries sustained by A.B. or how his saliva ended up on A.B.’s underwear. I find the injuries were caused by Mr. Menezes during the course of a violent sexual assault as he attempted to restrain A.B. I reject any suggestion that these were merely the result of Mr. Menezes’ efforts to protect himself against A.B.’s freaking out. Nor can the bruising be explained by Mr. Menezes’ version of events with A.B. falling on her right side. As for the saliva on the underwear, the mere possibility of transference does not rob this of any probative value. On the evidence before me, I am satisfied that this demonstrated that Mr. Menezes had more intimate contact with A.B. than he was prepared to admit.
Seventh, and perhaps most serious in my view, is that Mr. Menezes eventually testified that he did not remember what had happened between the time that A.B. freaked out and when she left. He said he thought that this was when they had a struggle. This was after he had already testified as to what had happened during this time. This suggests to me, at the very least, that his memory of the events of that evening is woefully incomplete. Alternatively, he is lying. I therefore reject his bald denial that he did not have vaginal intercourse with A.B. or that his penis was never exposed. I prefer A.B.’s testimony in this regard.
A.B. was quite forthcoming both with respect to her use of drugs and her mental health issues. She candidly admitted waiting for Jessie, her new boyfriend, for hours that night and how upset that made her. She admitted that she had been out for several days before August 20, 2014 and that she had had no sleep. She admitted taking some crystal meth that night but it was not a large amount, particularly for an addict such as herself. Importantly, there was no evidence that suggested that either A.B.’s drug use or her mental health issues would cause her to hallucinate.
A.B. forgot what had happened between her drinking the shot of tequila and her coming to in Mr. Menezes’ room. But she was unequivocal in her description of Mr. Menezes having vaginal intercourse with her. Her story is corroborated by the injuries she sustained. While she admitted that some of these might have been caused by drug use involving a tourniquet, there are many other bruises that cannot be explained in this way. I find that this other bruises were caused by Mr. Menezes’ attempts to restrain her while he was sexually assaulting her.
The fact that Mr. Menezes’ saliva is found on A.B.’s underwear also corroborates the idea of sexual contact between the two of them The fact that A.B. thought she might have left her underwear at the scene is simply more evidence of her state of inebriation.
I am not troubled by the fact that no injuries were observed in A.B.’s vaginal area. There was no expert evidence suggesting that this meant that vaginal intercourse could not have occurred. Certainly I would not make this finding. The fact that no semen was found in A.B.’s vagina is simply consistent with the fact that Mr. Menezes did not ejaculate inside of her. As for A.B.’s refusal to have a speculum examination I reject Ms. Revutsky’s submission that she did this because the examination would show there had been no intercourse. I have no expert evidence to show that such a conclusion could be drawn from the results of a speculum examination. Rather, I find that A.B.’s refusal to have this examination, and her failure to remember this, are both simply the result of her level of inebriation on the night in question.
I accept the testimony of Ms. Genereaux. She testified in an honest, forthright manner and admitted the limitations of her testimony. While some of it might be inconsistent with her earlier interview with the police, I find that this is merely the result of the passage of time. I find that she did see Mr. Menezes walking with A.B. and I find her testimony highly corroborative of A.B. being too intoxicated to give consent to sexual intercourse.

Conclusion About the Assessment of the Evidence

Ms. Revutsky concedes that the Crown has proven Mr. Menezes guilty of the charge of possession of cocaine.
For the foregoing reasons, I do not believe Mr. Menezes’ denial that he committed the other offences charged. Thus, I need to go on to the second step of W.D.
Under the second step of W.D., for the same reasons, Mr. Menezes’ testimony does not leave me with a reasonable doubt about his guilt, or, about an essential element of the offence charged.
Turning then to the third step of W.D., I must consider whether or not the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt. I am satisfied that counts 1 and 2 on the indictment have been proven beyond a reasonable doubt. I accept A.B.’s testimony about the nature of the sexual contact and I find that she did not have the capacity to consent to the sexual contact. Therefore this constituted a sexual assault and, given the injuries sustained by A.B., I find that this constitutes a sexual assault causing bodily harm.
Similarly, I find that Mr. Menezes forcefully restrained A.B. during the sexual assault. Thus, I find that Mr. Menezes has been proven guilty beyond a reasonable doubt of confining A.B. without lawful authority.
In conclusion, I find Mr. Menezes guilty as charged of count 1, count 2 and count 3 of the indictment.

T. DUCHARME J.

Released:

Citation: R. v. Menezes, 2017 ONSC 4803

Court File No. CR-16-10000031-0000

Date: 20170809

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Plaintiff

and –

JOSE MENEZES

Accused

REASONS FOR JUDGMENT

T. DUCHARME J.

Released: August 9, 2017

Footnotes

In addition to the witnesses whose evidence I review, the Crown also called P.C. Rouselle, P.C. Cerqueira, Robert MacDonald, and Sgt. Coyne. I have considered their evidence but need not outline it in these reasons.