R. v. P.N.W., 2017 ONSC 5698

COURT FILE NO.: 13-RM2312

DATE: 2017/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.N.W.

accused

Meaghan Cunningham, Anya Kortenaar and Malcolm Lindsay, for the Crown

Trevor Brown, for the accused

HEARD: (Ottawa) – May 15, 16, 17, 18, 19, 23, 24, 25, 26, 29, 30, June 5, 6, 7, 8, 9, 12, 15, 16, 19, 20, 21, 22 and 23, 2017

BY ORDER OF THIS COURT MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE NO INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS MAY BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

REASONS FOR JUDGMENT

C.T. Hackland J.

Overview

[1] The accused, P.N.W., is charged on a 45-count indictment. Counts 1 – 9 relate to assaults, sexual assaults and administering a stupefying or overpowering drug to enable himself to commit sexual assault against his then girlfriend with whom he co-habited in a relationship of four years duration. I will refer to her as Heidi, which is not her real name.

[2] Counts 10 – 38 are charges of sexual assault and administering a stupefying or overpowering drug to enable himself to commit sexual assault against 14 other women. To protect their privacy, I will refer to these women as complainants 1 through 14.

[3] The Crown alleges that in the course of a series of sexual encounters occurring during the period October 2013 through to the date of his arrest on March 11, 2015, the accused gave to the complainants doses of the drugs GHB or Ketamine, which the Crown alleges (and has proven) are stupefying or overpowering drugs – sometimes colloquially referred to as “date rape drugs” – with the intention of sexually assaulting these women and, except in two cases, did sexually assault them. Many of these assaults were captured by the accused, or in several instances by his girlfriend Heidi, on the accused’s cell phone camera in what can only be described as extremely graphic and disturbing images and videos. These images were recovered by the police in a warranted search from the accused’s electronic devices and are exhibits in this trial.

[4] All but one of complainants 1 through 14 testified in this trial and most have no recollection of having had sex with the accused – their memories are blank following consumption of the drugs supplied by the accused – which occurred in most cases in the accused’s apartment while they were “partying” with him. In most cases, his girlfriend Heidi was present.

[5] Counts 39 to 45 are charges against the accused under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). In particular, he is charged with trafficking in GHB, cocaine, MDEC, methamphetamine. cannabis marijuana and Ketamine, and possession of the proceeds of crime ($1,490).

[6] The accused testified in this trial (as the sole defence witness), and admitted that at the relevant times he made his living by trafficking in drugs. He was a street level trafficker, and through his counsel, he conceded that the Crown had proven counts 39 through 45 beyond a reasonable doubt. As explained later in these reasons, I have convicted on each of these counts.

[7] The reasons for judgment herein are organized as follows:

(a) The background of the accused and Heidi;

(b) The drug charges (Counts 39 to 45);

(c) Dr. Sampsell’s testimony about Ketamine and GHB;

(d) The law applicable to the charges against the accused;

(e) The charges involving Heidi (Count 1 – 9); and

(f) The charges involving the 14 other complainants (Counts 10 – 38).

[8] For the reasons explained below, I conclude that Heidi was the victim of an abusive relationship with the accused although she was also, as the Crown fairly described it, a “coerced accomplice” in his crimes against the other complainants. I found the evidence of Deborah Sinclair, an expert in the dynamics of partner abuse, to be very helpful in assessing Heidi’s evidence and credibility. Ms. Sinclair discussed the effects of ongoing partner abuse on women, particularly the psychological damage. Her evidence addressed the issue in general terms and not specifically with reference to this case.

Background of the accused and Heidi

[9] Heidi described the background to her four-year relationship with the accused. Their first date was March of 2011 and they moved in together within a few days. She was in her early 20’s and had come off what she described as a bad relationship. She had been living with her parents, had nearly completed her B.A. at a local university, and worked at several jobs as a server in bars in Ottawa’s Byward Market area. She described herself as high energy. She did not use drugs.

[10] Four years later when the accused was arrested following a 911 call placed by a downstairs neighbour, which resulted in Heidi being taken to the hospital by ambulance and placed in intensive care, she testified that “my life was hell, I was pregnant and in a really dark place in my life, trying to recover from addiction and living in fear every day”.

[11] Heidi said she was attracted to the accused because of his good looks and the fact that he was protective of her. She learned that he had a difficult childhood, having been raised in various foster homes. At first she was not aware that he was dealing drugs. He had a job at a fitness outlet. He began to introduce her to cocaine, which became her “best friend”. He told her the cocaine was just for her personal enjoyment – something they could do together.

[12] Heidi testified that she suggested to the accused that he start selling drugs to supplement their income and finance their own drug habits. The accused testified they agreed together to do this. They moved to a 7th floor, one-bedroom apartment on B[…] Street, which they occupied with their 60-pound pit bull Marley, to whom Heidi became and remains deeply attached. They also acquired a pit bull puppy. During this period, Heidi said she became heavily addicted to cocaine. The accused was selling drugs full time. Heidi rotated through a series of several serving jobs at Market area bars. She explained that every day she “just wanted to get home to get high”.

[13] During their time together on B[…] Street, their relationship began to deteriorate. At the time Heidi blamed herself for the problems, particularly her dependency on cocaine. She testified that during this period the accused would often become angry and hit and kick her and slam her head against the wall. The accused would frequent the bars where she worked, selling drugs and keeping an eye on her. One punishment he used was to lock her out on the balcony in the cold. Still, she said she was deeply in love with him and blamed herself for the trouble in their relationship.

[14] The indictment identifies several women allegedly drugged and assaulted by the accused in the B[…] Street apartment. Heidi admitted to being present on these occasions, one in which she admits sexual involvement with the victim. It was my impression that Heidi, in her testimony, was seeking to minimize her involvement in these incidents. She testified that during this period (fall 2013 to May 2014), she would have done anything asked of her by the accused because she remained in love with him, was dependent on him for cocaine and saw herself as responsible for most of his bad behavior.

[15] The Court had the benefit of observing five days of testimony from Heidi. I conclude that she is generally credible and I accept much of what she has to say, particularly as to the nature of her relationship with the accused. She admits she became “an enabler” for the sexual assaults. Interestingly, much of what she said about her role in these incidents is corroborated by the accused’s own testimony. The accused did not seek to portray Heidi as being actively involved in the sexual activity with the other complainants and none of the videos show her being involved. On the other hand, she admitted personally making several of the videos of the accused having sex with the complainants; whereas she had denied doing so in her earlier police statements. In terms of Heidi’s testimony, I recognize the need for caution and the advisability of seeking out corroborative evidence given her admitted involvement in several of the alleged assaults on the 14 complainants.

[16] On May 30, 2014, Heidi and the accused moved to a second-storey apartment in a small building on N[…] Street, in Ottawa. This was not far from their B[…] Street apartment – near the Market area where the accused sold drugs. The N[…] Street apartment gave them slightly more room for themselves and their two dogs. They brought with them the accused’s drug stash and all of their relationship problems including an increased level of personal conflict. During their approximate nine months at the N[…] Street address, the Crown alleges that Heidi suffered several beatings from the accused including the one occurring on March 11, 2015 when the police responded to a 911 call and arrested the accused. It was also during this period that the Crown says nine women were given either GHB or Ketamine by the accused and seven of them were sexually assaulted. Seven of these incidents occurred in the N[…] Street apartment.

[17] The Court was assisted by the evidence of RD (“the neighbour”), who related her difficult experience of living in the N[…] Street apartment below Heidi and the accused. Due to the thin walls in the building and the porch outside her window, she became a witness to the comings and goings of the accused’s drug customers and friends, as the drug business was being run out of his apartment. She was also exposed to the frequent noisy and sometimes violent fights involving Heidi and the accused. She befriended Heidi and tried on occasion to assist with her problems, which she viewed as arising from Heidi’s abusive relationship with the accused. Notably, this neighbour was the person who, believing the accused was attacking Heidi in the early morning hours on March 11, 2015, called 911, enabling the police and paramedics to rescue Heidi and arrest the accused. This led to the authorized seizures of the accused’s drug supplies and his electronic devices. The sex videos containing images of the accused and the complainants were found on these electronic devices.

[18] The neighbour was an impressive witness. She had an extensive opportunity to observe the relationship between the accused and Heidi and, as discussed below, I accept her evidence. In particular, I accept her evidence generally as to what she saw and heard of the actions of both Heidi and the accused. Where the neighbour’s evidence conflicts with the accused’s testimony, I accept the neighbour’s evidence unless stated otherwise.

[19] In her testimony, Heidi described having a highly conflictual relationship with the accused, particularly during the nine months in the N[…] Street apartment. She was made to understand and she accepted that he was the head of the household and he made the rules. These rules included that she was not to become pregnant, she was not allowed to get into his cocaine supply – he would give her the drugs while consuming them with her. She was to accept that he could have sex with other women when he chose to, including in his own apartment while Heidi was present. She was to co-operate in various ways in his drug business, including staying in the bedroom when suppliers or certain customers came over, participating in drug parties when invited and supplying drugs to customers in his absence, when he directed her to do so. She was also expected to make herself available for whatever sexual activities he sought and this sometimes included getting “G’d out” – meaning consuming GHB to the point she blacked out and had no memory of what occurred after blacking out.

[20] Most significantly she was expected, as she explained it, to accept and co-operate with the accused’s habit of “drugging and raping women” – in their own apartment while she was home. Heidi’s job, as the accused explained in his own testimony, was to clean up after the sexual encounters, to help the women get dressed, to reassure them that nothing harmful had happened to them and to help them get a cab or otherwise get them out of the apartment.

[21] Heidi testified that she sometimes failed to abide by the rules and as a result the accused would beat her up. She described the beatings in graphic terms. At this time Heidi was 5’7” and approximately 120 pounds. The accused is a large athletically built individual, over 6’ in height and well in excess of 200 pounds.

[22] Heidi testified that her cocaine addiction was so desperate that she found ways to get into the accused’s safe in the apartment or otherwise steal small amounts from his supply. He discovered these thefts on several occasions and responded by confiscating her apartment key and locking her out of the apartment when he was not home. Many of Heidi’s text messages, filed in evidence, consist of her begging forgiveness for various transgressions and begging the accused to come home and allow her into the apartment. The accused installed a special combination lock on the apartment door and Heidi was not permitted to have the combination. The accused admitted to all of this in his own testimony.

[23] The accused was verbally abusive to Heidi – her testimony in this regard was corroborated by the evidence of the downstairs neighbour and by several of the other complainants.

[24] Heidi testified that during the period they resided on N[…] Street she had become intensely unhappy but was still determined to salvage the relationship. She remained deeply in love with the accused and continued to see herself as the root cause of their problems. She also realized that he had come to control every aspect of her life. Due to her severe cocaine addiction she could no longer maintain steady employment. The accused controlled her drug supply, access to their apartment, and access to the two dogs to whom she was deeply attached.

[25] The accused was required to serve a jail sentence for assault for a two-month period from December 2014 to January 29, 2015. The accused telephoned Heidi daily from jail to leave instructions concerning drug sales. During this period Heidi learned that she was pregnant. She wanted to keep the baby and said that she secured the accused’s agreement that they would bring up the baby and re-work their lifestyle. She said they had agreed on “a plan”. She explained the plan was that she would get off drugs and they would no longer deal drugs from their apartment. Furthermore, the accused was to stop raping women.

[26] As noted, the accused testified at length in this trial. On the subject of their relationship, he corroborated much of what Heidi had to say. However, he flatly denied ever beating or sexually assaulting her. He also denied that Heidi had any problem with him having sex with other women. However, he conceded that Heidi often objected to the “after parties” with women that he frequently held at their apartment in the early morning hours. He agreed that he had told Heidi he would ease up on these parties while she was pregnant.

[27] The accused admitted in cross-examination that he did “talk-down” to Heidi and may have insulted her and called her names such as dumb, stupid, selfish, naïve and mooch. He did this, he explained, because he wanted the best for her so she could achieve more. He admits on occasion losing his temper at Heidi, yelling at her and shaking her but denies ever having been abusive or violent. It was, in his words, “tough love” to “inspire her to do better”. He said he “liked” Heidi and he respected her as he respected women generally.

[28] The accused admitted to becoming extremely upset when Heidi got into his cocaine – he saw this as a fundamental breach of trust. He admitted to confiscating her apartment key and kicking her out when he got upset. He admitted in cross-examination that it got to the point that Heidi was generally locked out of the apartment when he was not home.

[29] Heidi’s description of their relationship was significantly supported by the many text messages she sent to the accused, to which there were very few replies. The accused admitted he would deliberately not respond to her when he was angry. He said he was usually good to Heidi. He bought all her clothes and would give her money as needed to buy things. On the other hand, he explained, he expected her to go along with the parties and his sexual contact with other women because that was his lifestyle. He said he had sex with other women several times a month and he was open about that with Heidi, who did not object. He commented that Heidi's “role” was to clean up the apartment and this included cleaning up urine from women who had lost control of their bladder after consuming GHB.

[30] In my view, the accused made an extremely negative impression in his testimony. He showed himself to be the person described by Heidi, a condescending and bullying individual who attempted to control every aspect of her life. Many of his answers reflected a grandiose view of himself, a harsh and patronizing attitude toward Heidi and a tendency to make up his evidence as he went along. His basic position, that he never was abusive to nor did he assault Heidi, is contradicted by a great deal of evidence from sources other than Heidi and indeed by his own evidence. His assertion that he respected women showed a disturbing detachment from reality.

Drug Charges (Counts 39 – 45)

[31] As noted, I find that the Crown has proven beyond a reasonable doubt the charges under the CDSA in counts 39 – 44 of the indictment and the possession of proceeds of crime charge in count 45. The accused admitted that a finding of guilt on these counts is appropriate. I find the accused guilty on counts 39 – 45 of the indictment.

[32] When the neighbour called 911 on March 12, 2015, the police came upon the accused’s drug stash in the apartment. The drugs and drug paraphernalia were located in two safes and the accused’s refrigerator. A warranted search was carried out and the drugs seized were GHB, cocaine, MDEC, methamphetamine, cannabis marijuana and Ketamine.

[33] The accused admitted in his testimony that he trafficked these drugs as his regular occupation. Heidi and all the complainants knew the accused to be a drug dealer. The evidence is overwhelming and not contradicted in any way, that the accused was a street level drug dealer. I fully accept the opinion evidence given by Sgt. Pilon in this regard.

[34] In view of the sexual assault charges it is particularly important to observe that the accused trafficked in GHB and Ketamine and that he personally used both drugs, particularly GHB, and he kept these drugs stored in a safe and in his refrigerator (the GHB) in the couple’s N[…] Street apartment.

Expert Evidence

[35] An important issue in this trial was the nature and effect of the drugs GHB and Ketamine. The accused had a supply of these drugs in his apartment. He admitted trafficking at least GHB and using it himself and giving it to people “partying” at his apartment. I accepted the opinion evidence of Dr. Keri Sampsell as to the nature and effects of these two drugs. I allowed her to opine as to the cognitive abilities of the complainants appearing in the cellphone videos taken by the accused while he sexually touched them.

[36] Dr. Sampsell is an emergentologist at the Ottawa Hospital and Medical Director of the Sexual Assault and Partner Abuse Care Program. Her knowledge of these drugs and her clinical experience with them is extensive. Her evidence was of great assistance to the Court.

[37] Dr. Sampsell provided the following information concerning Ketamine :

− It is administered for certain medical purposes such as endotracheal intubation and reduction of dislocated shoulders and other painful and uncomfortable procedures in which the patient must be kept awake;

− It is a reasonable pain killer and a dissociative agent (“it takes away the patient’s awareness of what’s going on so people don’t remember anything “concerning the medical procedure”;

− “It takes away the fact that individuals might be apprehensive or scared, but it allows them to maintain their muscle tone, breathing, and reflexes and they are able to kind of move a little bit with us to help facilitate these procedures”;

− Ketamine operates “to make people dissociated, so it gives them pain relief – it takes away their anxiety and makes them dissociate so they don’t remember the medical procedure…”;

− It is a white powdery substance…looking exactly the same as cocaine…in the powder form you can snort it up your nose;

− The drug takes effect two to three minutes after consumption…most people are affected by it in the dissociation side of things for a number of hours depending on amount consumed…most people are under the effects for hours afterwards;

− Both Ketamine and alcohol are sedatives, so that combining the two drugs increases the sedative effect. Contrast this with cocaine, which is a stimulant;

− Physical effects of Ketamine include very slurred speech, eyes may be opened or closed, flushed red tone to the person’s skin and repetitive motions. However, importantly, Ketamine allows a patient to maintain their muscle tone and stay awake. It is common that persons consuming Ketamine will cough or drool due to the drug’s effect on the respiratory system;

− At a very low dose it works as an anxiolytic, taking away people’s nervousness and starting the process of dissociation…creating a euphoric feeling…a bit of a high;

− Even at a low dose Ketamine causes a significant memory impairment…although people may remember little snippets of what they were doing;

− The effect of a low dosage of Ketamine on higher cortical functioning…“it blurs all of them, it may not knock them all out but it will definitely impair them…the effect of a higher dose of Ketamine on higher cortical functioning is to knock it all out at that point”;

− As to the combination of alcohol and Ketamine…”it’s a cumulative effect in the sense that in relation to higher cognitive processing, they work differently in that alcohol is a straight sedative and Ketamine is a dissociative agent…but as far as how they affect higher cognitive functions, they are going to cut them off”;

− Urine incontinence is common in persons consuming Ketamine.

[38] Dr. Sampsell also discussed the drug GHB as follows:

− It was used as an anesthetic agent in the 1950s. It induces a person to be unconscious very, very quickly – it has a narrow therapeutic index, meaning that a little bit to way too much is a very narrow window, so it was unsafe as an anesthetic agent;

− GHB can be made from several industrial solvents that are readily available. It is a clear liquid; it looks like water. It can be drunk as a liquid, with onset of effects in the 15 – 30 minute range and lasting usually hours at a time;

− GHB is a sedative, as is alcohol. The combination of the two results in deeper and longer lasting sedation…you pass out quickly but take longer to wake up afterwards;

− As to the combination of GHB and a stimulant like cocaine (or Ecstasy), the respective drugs will have opposite effects, i.e. if you take more cocaine than GHB, you a going to have a less of a high than what you would have from cocaine alone. If you were to take more GHB than cocaine one would expect more of a sedative effect;

− In low doses GHB is much like alcohol, producing a euphoric effect. But in higher doses “you can end up with deep, deep sedation resulting in the loss of consciousness – in contrast to Ketamine which produces a state of dissociation”;

− Higher doses of GHB can rapidly induce a coma, which can be fatal. In an unconscious state a person is not able to protect their airway and they can lose oxygenation to the brain;

− In terms of the cognitive effect of GHB consumption…in larger doses in the deep coma state one has no higher cognitive functioning, and no memory at all due to anterograde and retrograde amnesia.

[39] It was Dr. Sampsell’s evidence that anyone significantly under the influence of GHB or Ketamine would be unable to engage in decision making, would not understand what is being told to them, would be unaware of things happening around them and would be unable to change their mind. Dr. Sampsell also pointed out that GHB is faster in its onset than Ketamine. However, both drugs knock out memory, either through loss of consciousness (GHB), or by a dissociative state (Ketamine).

[40] Dr. Sampsell’s evidence satisfied me that the drugs, Ketamine and GHB, constitute “stupefying or overpowering” drugs as contemplated by s. 246 of the Criminal Code.

Points of Law

[41] This case necessitates consideration of a number of points of law relating to (a) sexual assault and consent, (b) administering a stupefying or overpowering drug (s. 246(b) Criminal Code) and (c) similar fact evidence. I will discuss what I consider to be the applicable law on these issues.

Sexual Assault and Consent

[42] The case law is well developed on this topic and I think the Crown and defence were largely in agreement. I have extracted below some particularly relevant principles set out in a helpful factum filed by the Crown.

[43] The actus reus of sexual assault is sexual touching and the absence of consent. The operative issue in this case is whether the Crown has proven beyond a reasonable doubt that each complainant did not consent to the sexual touching, because of incapacity arising from the consumption of drugs.

• The consent must be contemporaneous with the sexual acts:

A person cannot perform sexual acts on an unconscious person even if the person consented to those acts in advance of being rendered unconscious. Consent in the Criminal Code requires the complainant to be conscious throughout the sexual activity in question. The definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious. The legislation requires ongoing, conscious consent to avoid sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.

R. v. J.A., 2011 SCC 28

• Incapacity to consent:

Section 273.1(2)(b) of the Criminal Code provides that “no consent is obtained where … the complainant is incapable of consenting to the activity”.

Capacity to consent is a factual finding to be made by the trial judge. In R. v. L.G., 2007 ONCA 654, the Ontario Court of Appeal identified the test for “capacity to consent” as follows:

In order for the complainant 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. (para. 96)

Consent requires “a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act”: McLachlin C.J. in R. v. J.A., 2011 SCC 28 at para. 44.

• Involuntary consent:

“Consent” is defined in section 273.1 of the Criminal Code as “... the voluntary agreement of the complainant to engage in the sexual activity in question.”

To be legally effective, consent must be freely given and fully informed: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at para. 36. Such an agreement must be voluntary and cannot be achieved through the illegal or deceptive conduct of the accused. If the accused administered a drug that he knew would produce consent and compliance regardless of the victim’s true intentions, that agreement cannot be said to be “voluntary”.

[44] “Complainants 1 – 14” for the most part do not recall having engaged in sexual activity with the accused. They blacked out after being given drugs by the accused. The case law reflects that no valid consent can be given in the circumstances.

In R. v. Daigle (1998), 1997 9934 (QC CA), 127 C.C.C. (3d) 130 (Que. C.A.), aff.d (1998), 1998 786 (SCC), 127 C.C.C. (3d) 129 (S.C.C.), the Quebec Court of Appeal held that the complainant’s consent was not valid, because she had been surreptitiously drugged with PCP (an illicit, dissociative drug) by the accused. In so holding, the court relied on the reasons of Fish J.A. (as he then was) in R. v. Saint-Laurent (1993), 1993 4380 (QC CA), 90 C.C.C. (3d) 291 (Que. C.A.) at paras. 98-99:

As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has been exercised where a person engages in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation.

“Consent” is, thus, stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will.

The question of consent is subjective and is determined by reference to the complainant’s internal state of mind towards the touching at the time it occurred:

R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at paras. 25-26.

A complete absence of memory of the sexual activity can lead to an absence of direct evidence from the complainant regarding whether she consented or not. Courts have inferred an absence of consent in the past where complainants have no memory of the sexual activity due to extreme intoxication, in particular where they testified that they would not have consented (for example, due to a recent abortion, or due to not being attracted to women, etc.). In those cases, the complainants were unable to testify to an actual absence of consent at the time of the sexual activity due to an absence of memory, but the courts nonetheless drew the inference of an absence of consent.

R. v. Morden, 1991 5766 (BC CA), [1991] B.C.J. No. 3624

R. v. J.R., 2006 22658 (ON SC), [2006] O.J. No. 2698 (S.C.J.)

It is legally permissible for a judge to consider a complainant’s belief as to how she would have behaved. The judge can factor that evidence into the consent equation.

R. v. Meikle, [2011] O.J. No. 887 (S.C.J.)

Mens Rea for sexual assault

Sexual assault is a crime of general intent. To form the requisite mens rea, an accused must intentionally apply force to another with knowledge of (which includes actual knowledge, being reckless of, or willfully blind to) a lack of consent. An accused may challenge the Crown’s evidence of mens rea by asserting a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant.

Honest but Mistaken Belief in Consent

I take the following passage from the Crown’s Factum:

“The defence of mistake of fact is available when an accused honestly but mistakenly believes the complainant consented to his actions. There is no burden of proof on the accused; the burden remains on the Crown.

R. v. Osolin 1993 54 (SCC), [1993] 4 S.C.R. 595 at paras 116-118

The Criminal Code places some limits on this defence in section 273.2:

It is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where:

(a) the accused's belief arose from the accused's

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

The defence of honest mistaken belief in consent is not available if the trial judge finds as a fact that the accused surreptitiously drugged the victim prior to the sexual activity. The Ontario Court of Appeal wrote in R. v. Fleming, 2007 ONCA 808 at para. 7:

Finally, the appellant’s contention that the trial judge erred by failing to consider the defence of honest but mistaken belief in consent is unsustainable. The appellant’s counsel acknowledged before this court, properly in our view, that once the trial judge found as a fact, as he did, that the appellant drugged the complainant without her knowledge as a precursor to sexual activity, this defence had no air of reality and was foreclosed.

The Court of Appeal in R. v. L.G., 2007 ONCA 654 at para. 9 similarly concluded:

Given the trial judge’s finding that the appellant added GHB to the appellant’s wine without her consent, in our view, there was no air of reality to the defence of honest but mistaken belief in consent and the trial judge made no error in failing to consider it.

The Supreme Court also found that a defence of honest mistaken belief in consent was not available when the accused surreptitiously put PCP in the victim’s drink: R. v. Daigle, [1998] S.C.J. No. 54 (S.C.C.)

[45] The accused appears somewhat intoxicated in the videos he made of him having sex with a number of the complainants. He observed at one point in his evidence that he knows his intoxication is no excuse.

[46] Section 33.1 of the Criminal Code specifically prohibits the defence of self-induced intoxication for any offences that involve interference with another person’s bodily integrity (such as a sexual assault).

Section 273.2 of the Criminal Code also states:

It is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where:

(a) the accused's belief arose from the accused's

(i) self-induced intoxication …

[47] The defence of honest mistaken belief in consent is not available whenever the accused’s alcohol consumption, of whatever degree, is a material cause of the misperception. Justice Hill convicted an accused of sexual assault in circumstances where he was highly intoxicated:

I am satisfied, beyond a reasonable doubt, that T.S. [the accused], at the times of the alleged assaults, was intoxicated to a degree which impaired his judgment, reduced his social inhibitions and self-control, and rendered clear signals of non-consent irrelevant to his pursuit of sexual lust.

R. v. T.S., [1999] O.J. No. 268 (Gen. Div.) at para. 129

[48] I would observe that the accused does not appear to have been heavily intoxicated in any of his videos. In contrast to the complainants who are comatose or nearly so, the accused is seen actively moving about, keeping up a vulgar dialogue, performing sexual acts, taking cellphone images, making faces, clowning around and apparently enjoying himself. The accused clarified in his testimony, and Heidi supports this, that he knew exactly what his tolerances were for GHB, and indeed he knew Heidi’s tolerances. I find that the accused carefully controlled his own level of intoxication so he could engage in his sexual activities.

Administering a Stupefying or Overpowering Drug s. 246(b) Criminal Code

[49] There is a trilogy of Ontario Court of Appeal cases from 2007 dealing with sexual assault and administering a stupefying substance: see R. v. Fleming, 2007 ONCA 808; R. v. Bell, 2007 ONCA 320; and R. v. L.G., 2007 ONCA 654. The elements of the two offences are as follows:

(1) A “stupefying” or “overpowering” drug was involved;

(2) The accused “administered” the drug to the victim;

(3) The accused’s intent was to commit an indictable offence – in this case, it is particularized in the indictment as sexual assault; and

(4) The drug is “stupefying” or “overpowering”.

[50] To convict of the offence in section 246(b), the Crown does not need to establish exactly which drug was administered and at which precise dosage. The Crown must only establish that the only reasonable inference is that a stupefying or overpowering drug was administered. In R. v. Bell, the Court of Appeal upheld the conviction where it was clear a “type of date-rape drug” was used, but the Court could not determine which drug in particular was used.

R. v. Bell, supra, at para. 35

R. v. Jorgge, [2010] O.J. No. 6341 (S.C.J., per Wilson J.) at para 210.

[51] In order to find that a complainant was drugged, there need not be conclusive expert evidence to corroborate the complainant's assertion that she was drugged. Drugging can be established by the complainant's evidence alone. Extrinsic evidence such as toxicological evidence, rapid deterioration in the complainant's mental and physical functioning and the accused's behaviour and words are evidence to establish the accused administered a stupefying substance. It is open to the court to find drugging took place even where drugs are not detected or the expert evidence is inconclusive.

R. v. Bell, supra, at para 35

R. v. Vant, 2010 ONSC 2474, [2010] O.J. No. 2623 (S.C.J. per Seppi J.) at para. 174, affirmed by the Court of Appeal, 2015 ONCA 481

[52] In this case the position of the accused was that he had the consent of the complainants to give them GHB and that he gave it to them for their enjoyment (“to enhance their high”) and not to enable himself to sexually assault them.

[53] The Crown is required to prove that the accused “administered” the stupefying or overpowering drug. The definition of “administer” from Criminal Law, 4th ed. Manning Mewett & Sankoff was cited with approval in R. v. Giles, [2013] O.J. No. 2803 (S.C.J., per Eberhard J.) at para. 8:

To found a conviction under this section, the accused must administer the poison or noxious substance or in some way cause the victim to take it. Administering thus requires an active involvement. … What actions will amount to causing a person to take the substance remains unclear, but indirect transmission likely qualifies. For example, the wording undoubtedly covers a situation where a person disguises poison as food or drink. And the victim "administers" it themselves. However, it would not include a situation where the person merely provides the noxious substance, and the victim -- with full knowledge of what it is -- makes a free and informed choice to ingest it: United States of America v. Saad [2003] O.J. No. 1655 at para 16.

(emphasis added)

[54] I accept that the accused cannot be said to have “administered” the drug where the victim voluntarily consented to consume the drug. I respectfully agree with the court’s observation R. v. Saadatmandi, 2008, BCSC 250 as to the meaning of “consent” in the context of s. 246(b).

15 In my opinion, the principles of consent that apply under this section are similar to those that I have described above in the context of sexual assault. The consent must be freely given and fully informed, and it must be given to the particular drug at the time it is offered. The absence of consent in this context also involves a subjective determination of the complainant's state of mind.

[55] Thus, the accused cannot be said to have “administered” the drug where the victim voluntarily consented to consume the drug and the consent was “freely given and fully informed”. However, I agree with the Crown’s submission that where the accused misrepresents which drug will be consumed, or the nature or effects of the drug, and the victim then consents based on this representation, it cannot be said to be a true “consent” in law. Similarly, where the victim consents only to a small dose and the accused provides a larger dose without the victim’s knowledge, it cannot be said to be a true “consent” in law.

[56] I agree with the Crown’s submission that the framework for vitiation of consent can be extended from the sexual assault context to the context of administering a stupefying drug for the purpose of committing a sexual assault. The question for this Court then will be whether the accused’s explanation of the nature, effects and dosage of the drug he provided was a dishonest act; whether the complainant would have refused the drug had she known of the true nature, effects and dosage of the drug; and whether the consumption of the drug in the quantity actually provided to her by the accused posed a significant risk of serious bodily harm.

[57] In this particular case, the act of administering GHB to a person amounts to “exposing that person to a significant risk of serious bodily harm”, based on the testimony of Dr. Sampsell. Her evidence was that in anything beyond very small doses of GHB, there is a danger of losing consciousness, respiratory arrest and possible brain damage.

[58] As to the Mens Rea requirement (with intent to commit an indictable offence), I agree with the Crown that it is important to look at the whole context to assess the intent of the accused at the time of the drugging. If a sexual assault takes places very shortly after the drugging, it can be assumed the accused intended the natural consequences of his actions. In addition, evidence of the accused’s intent can be inferred from his conduct in relation to the other complainants. The Crown’s application to admit similar fact evidence is allowed, for the reasons that follow.

Similar Fact Evidence

[59] I granted the Crown’s application to use similar fact evidence on a count-to-count basis with respect to the charges of sexual assault and administering a stupefying drug, for complaints 1 – 14 named in the indictment and Heidi. I concluded that this evidence was required for a proper consideration of whether the accused had a specific propensity to administer incapacitating doses of stupefying drugs to women and then touch them in a sexual way when they were incapable of consenting. In the circumstances discussed below it became very clear that this is what the accused was in fact doing.

[60] I appreciate that evidence of a similar act contained in one count of an indictment is presumptively inadmissible for consideration in relation to the other counts in the indictment. However, as pointed out in R. v. Handy, (2002) 2002 SCC 56, 164 C.C.C. (3d) 481:

There is a narrow exception of admissibility where it is so highly relevant and cogent that its probative value outweighs any potential prejudicial use. Probative value exceeds prejudice where the force of similar circumstances makes coincidence improbable or defies other innocent explanation. The onus is on the Crown to satisfy the trial judge on a balance of probabilities, that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudicial effect and thereby justifies reception.

[61] Further as stated in R. v. Quesnelle, [2009] O.J. No. 5501 (SCJ):

Admissible propensity evidence is evidence that shows a pattern of circumstances in which an accused is disposed to act in a certain way which is so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity, or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. It is repeated conduct in a particular and highly specific type of situation that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken by the jury.

[62] In assessing the probative value of the proposed similar fact evidence the Crown argues, and I agree, that it is relevant to the followings issues:

• Whether Mr. P.N.W. surreptitiously administered GHB or Ketamine to a particular victim;

• For those victims who agreed to consume some GHB, whether Mr. P.N.W. gave them a dose he knew would produce effects they to which had not agreed;

• Whether Mr. P.N.W. intended to incapacitate the victims in this case when he gave them GHB or Ketamine;

• Whether in giving them the GHB or Ketamine Mr. P.N.W. intended to touch the women sexually once they were incapacitated;

• Whether he in fact touched someone in a sexual manner when she was incapacitated;

• Assessing Mr. P.N.W.’s mens rea, including whether he had an honest mistaken belief in consent on each occasion.

[63] The case law warns against admitting evidence of general disposition or bad character. What is required is evidence of specific disposition – in this case to surreptitiously administer incapacitating doses of a stupefying drug to women and then sexually touch them when they are not capable of consenting.

[64] I agree with the Crown’s written submission outlining the similarities in the evidence pertaining to complainants 1 - 14 included in counts 10 – 38:

(a) The victims were all females in their 20’s (except C6, whom Heidi believed was slightly older);

(b) The accused invited the victims over to his apartment (all except C1);

(c) For the most part, Heidi was home when the victims were at the apartment (all, except C1 and C6);

(d) For the most part, this was each victim’s first time at the accused’s apartment (all except C11 and C5);

(e) The victims all went over with the intention of having drinks and drugs, not of having sex with the accused. The victims were intending to spend the night at their own homes;

(f) The victims were given drinks by the accused that contained GHB. They each remember being given the drink and beginning to consume the drink, and then lose their memory. (All, except C12 and C8);

(g) C12 and C8 both describe being given a white powder, that they thought at the time was cocaine. After snorting it, they were sure it was not cocaine but rather Ketamine;

(h) With the exception of C5 and C13, the victims testified that there was no discussion whatsoever of GHB or Ketamine. They testified that they would not have consented to consume either of those drugs;

(i) With the exception of C8, the victims all lost memory within minutes, for many hours, until the next day. This is true of all the victims who consumed the mixed drink and of C12 who consumed the white powder;

(j) The day after the incidents, the victims all felt sicker than they had ever been;

(k) With the exception of C1, C3, C12 and C8, the accused took naked photographs or videos of the victims surreptitiously. The photographs include close-ups of the women’s vaginas. They do not remember the sexual activity, or being photographed;

(l) The events are proximate in time (December 2013 to March 2015). At all times, the accused had access to GHB and Ketamine;

(m) For the most part, the accused touched the women’s vaginas with his hand (C11, C13, C14, C9, C7, C10, and C6);

(n) For the most part, the women lost memory while their clothes were on and woke up with their clothes off. The photographs show them with clothes off (C11, C13, C14, C2, C9, C7, C5, C10, C4, and C6);

(o) In many cases, the sexual touching progressed to intercourse or fellatio (C13, C14, C2, C10, C4, C6, and C1);

(p) The sexual touching was not brief or momentary. The timestamps on the photos and videos bear out that the sexual touching generally spanned the course of at least 30 minutes. For C1, the surveillance video shows Mr. P.N.W. was in her apartment for 50 minutes, and he testified to prolonged sexual activity;

(q) Many women testified that Heidi was the one to give them clean clothing and waited for a taxi with them. Many women also testified that Heidi told them “not to worry” or that “nothing happened” (C2, C5, C6, C13, and C4); and

(r) This type of incident only occurred once with each complainant.

[65] Several other factors weigh in favour of admission of count-to-count similar fact evidence in this case. All but one of the 14 complainants testified. They were all credible to the extent they had any memory of the events. There was no opportunity for collusion between these women. Only two, complainants 3 and 4 knew each other. There was no appearance of collusion in their evidence.

[66] Moreover, the Crown is not seeking to tender evidence with respect to offences not contained in the indictment. The evidence on the similar fact application is the same as the trial evidence on its merits. The similar fact application will not distract from the trial proper or consume an undue amount of time. Further, this is a judge alone trial. As a result, the normal prejudice arising from similar fact evidence can be attenuated.

[67] Viewed separately, without considering the remarkable similarity of the events experienced by each of the complainants (the improbability of coincidence), it is possible on the administration charges and on several of the sexual assault charges to be in doubt as to the accused’s intentions as he gave GHB or Ketamine with these women in his apartment. It is only upon consideration of the accused’s conduct directed at each of the complainants, culminating in sexual assaults that it becomes clear what the accused’s intentions were. To exclude this evidence, in my respectful view, would be to deprive the Court of essential and highly probative evidence that outweighs any inherent prejudice. I rule that the count-to-count similar fact evidence shall be admitted in this case.

Assaults against Heidi (Counts 1 – 9)

Assault: March 11 – 12, 2015 (Count 1)

[68] The accused is charged in count 1 with aggravated assault on Heidi on March 11 - 12, 2015. The Court heard evidence about this incident from the accused and Heidi, from the downstairs neighbour who called 911 and from the police and paramedics who attended. There is a statement of admissions (exhibit 1) listing the serious injuries for which Heidi was hospitalized.

[69] The neighbour said Heidi was home over the course of the evening and the accused was in and out. At about 11:30 she heard the accused leave the apartment with a young woman. He returned by himself between 1:30 and 1:45 a.m. and she heard a fight break out at about 2:00 a.m. This was not in itself an unusual event, as she heard “knock’ em down – drag’ em out” fights on a weekly basis. The paper thin walls permitted the clear passage of sound. She described these as jealous arguments, with the accused yelling with his loud deep voice accompanied by banging and slamming sounds. The neighbour’s interpretation was that Heidi was being beaten on a regular basis. Following an earlier fight the neighbour had called 911. Heidi had asked her to promise after that not to call the police again because P.N.W. would likely be arrested and she did not want that.

[70] However, the neighbour testified that this altercation on March 12th sounded like a particularly serious fight and she knew Heidi’s pregnancy was advanced. There was loud screaming and banging moving from room to room. She said it was “bedlam” and continued for about 20 minutes before she placed the 911 call. Significantly, she heard high-pitched, fearful screaming from Heidi, which she described as “panicked and hysterical”. She said she heard one “God almighty bang” that shook the building. Leading up to that she heard Heidi calling out “..ow… ow P.N.W., you’re hurting me, please stop”. She said the police responded quickly to her 911 call and she let them into the building. She later witnessed paramedics remove Heidi from the building in a stretcher. She said Heidi was wearing a neck brace, her face was red and swollen and she appeared to be unconscious. I found the neighbour’s testimony to be balanced and credible.

[71] Heidi testified that the evening started out well. She and the accused went to the Shore Club bar to meet two friends who wanted to buy drugs. Later he told her to go home and that he would be home later, maybe with the same two friends. Heidi made it clear she wanted an evening alone at home. Later the accused called her and said he planned to meet a woman at a nearby restaurant and suggested they meet later to have three-way sex. Heidi knew this person was one of the women the accused had previously had sex with. She said she was jealous and became extremely upset at this change of plans. She became even more upset when he asked why she was interfering with his fun. The accused came home briefly to get drugs and headed out to meet this woman.

[72] Upon the accused’s return Heidi was packing her suitcase to leave. She told him she was leaving: “I’m done”. She said she was feeling anxious and panicky and was having trouble breathing. She recalls the accused yelling at her that “you’ve ruined everything”. She recalls that he grabbed her by the head and dragged her into the bedroom. He smashed her head against the wall above the mirror. He pushed her down and kicked her three times in the stomach. She testified that she seems to have blacked out at that point, although she has a recollection of a paramedic shining a light in her eyes. She has vague recollections of her ten days in hospital. She miscarried shortly after admission to hospital and had to undergo induced labour to deliver the late term fetus. She was deeply traumatized by this. Her facial injuries gradually cleared up and neck injuries healed over two to three months. She still has a twitch in her right eye and recurring neck and back problems. Hospital testing established that she had no drugs in her system when admitted to hospital and that one of the injuries she received was a fractured vertebra.

[73] The evidence of police and paramedics responding to the 911 call provides strong support for the conclusion that Heidi had been severely beaten. The hospital photographs show multiple bruising on her stomach and limbs and severe trauma to her face.

[74] Concerning Heidi’s injuries, I quote from Ex. 1 Statement of Admissions:

10. Upon arrival at the hospital by ambulance, [Heidi] was treated by the trauma team. Although she was initially conscious, she began to lose consciousness after approximately five minutes and she had to be intubated to protect her airway.

11. [Heidi] was admitted to the Intensive Care Unit where it was observed that she had considerable swelling and bruising to the left side of her face, left and right eyes, as well as abrasions to her forehead. There was swelling alongside her scapula (shoulder) and large abrasions on her neck. She had bruising and abrasions to her right and left legs. A large superficial laceration was observed below her left breast.

12. A CT scan revealed a burst fracture of the C7 vertebral body with significant depression of the superior and inferior endplates with loss of height to 50% in the center of the vertebral body. She was placed in a C-collar.

[75] I accept the evidence of the police that they disclosed to the accused why they were knocking on his door (“female in distress”) and that they were met with active resistance from the accused who demanded to see a warrant before he would allow entry. The police forced their way in. While the two male officers restrained the accused against the kitchen table, the female officer located Heidi, unconscious in the bedroom of the apartment. She quickly ascertained that Heidi appeared to be seriously injured. All three officers attempted to handcuff the accused, who actively resisted. Another officer subsequently arrived and was able to persuade the accused to stop resisting arrest.

[76] The accused testified as to his version of events. He said he returned to the apartment in the early morning hours, having been at the apartment of a friend where they consumed drugs (GHB and cocaine) and had sex. He opened the apartment door and called Heidi’s name, but there was no response. He went into the bedroom and saw her lying on her back on the floor with her legs on the mattress. He called her name loudly and shook her but she would not wake up. He said he was concerned she may have taken drugs.

[77] He said he used his middle finger and thumb to open her eyelids. He scraped inside her nostril with his finger. He then tried to stand her up and she seemed to stand on her own momentarily at which point her legs buckled and she fell backward, slamming her head on the edge of the dresser and the floor. While on the floor she began speaking incoherently and attempted to pull herself onto the mattress. He saw blood on her face. Still suspecting a drug overdose, he removed her pants to see if she had urinated. He said he was feeling “frustrated” and he picked her up, carrying her with both arms into the living room. Her eyes were closed but she was breathing. He put her down in the living room and walked to the bathroom at which point he heard three police officers banging on the door.

[78] The accused acknowledged that he refused the officers’ demands to be let in…“where’s your warrant… you are not coming in”. He described how he resisted and how the officers pushed their way in and pinned him against the kitchen table. He said the police were punching and kicking him… He said he was “freaking out” and “I was not allowing myself to be restrained”. He also asserts that at one point he called out to the female police officer “please, please, please go into the living room and check on my girlfriend…she needs assistance”. In cross-examination he admitted he gave an entirely different story to the police following his arrest – he told the police at that time he had accidentally dropped Heidi, as he carried her to the living room and he demonstrated how this happened. He said in his trial evidence, however, that Heidi fell only once from a standing position and he did not drop her at any time.

[79] I reject the accused’s version of the March 12, 2015 incident. His testimony fails completely to account for Heidi’s severe injuries. His story to the police following his arrest and his trial evidence are completely inconsistent. I accept the neighbour’s evidence as to the loud and violent argument lasting some twenty minutes before the police arrived. Heidi’s evidence that she was viciously attacked by the accused as she sought to leave him, rings true. The evidence of the three police officers contradicts nearly everything the accused had to say – in particular he had no interest in allowing the police to find Heidi and attend to her urgent medical needs. The accused will be convicted of aggravated assault, which is count 1 on the indictment.

Counts 2 and 3

[80] I also accept the evidence of the arresting officers that the accused actively resisted arrest, which was essentially admitted by the accused’s own trial evidence that he “was not allowing himself to be restrained”. His conduct constitutes the offence of resisting a police officer in the execution of his duty, contrary to section 129(a) of the Criminal Code (count 2 on the indictment) and breach of a probation order, admitted to have been then in place, requiring him to keep the peace and be of good behaviour, contrary to section 733.1 of the Criminal Code (count 3 on the indictment). He will be found guilty of both these offences (counts 2 and 3).

Assault: June 11, 2014 (Count 4)

[81] The downstairs neighbour provided a detailed account of this incident. There were loud noises from the accused’s apartment. The accused yelled “get the fuck out” and dragged Heidi down the stairs, banging her along the walls as he did so and, upon arriving at the porch, kicked her off the porch onto the front walkway. Heidi was with a friend K.. The accused was shouting that the drugs were his drugs not theirs. Heidi was on the grass lying on her side. The accused shouted “get up you are embarrassing me” and grabbed her and punched her a couple of times in the ribs. K. was saying “P.N.W. go easy”. The accused went back upstairs and the neighbour and K. called an ambulance. Neither of them told the paramedics about the assault. The accused left the area before the ambulance arrived.

[82] Heidi testified that the accused “G’d her out” that evening and she recalls him hitting her on the head and the ribs. She does not recall the neighbour being present or being outside the apartment. She recalls “freaking out” in hospital and being very sore in her neck and head. Hospital staff refused to give Heidi pain medication. She was released from hospital and returned home by cab.

[83] The accused said that he recalled this incident. He recalls Heidi being “G’d out”, that her eyes were funny, she was stumbling and unable to stand. He agreed he could tell when someone had too much GHB. He denied he was angry, but conceded he was “frustrated” because he had to interrupt his partying to take care of the situation. He said he was “nervous” about how G’d out Heidi appeared to be. She could not stand up; he had to take her outside to get her fresh air and to get her away from the drugs. He denied hitting her. He said he would not have called the ambulance himself and conceded he left the area so he would not have to answer “awkward questions” about Heidi’s condition.

[84] I am satisfied beyond a reasonable doubt that the accused assaulted Heidi on this occasion. He admitted being frustrated, nervous and upset at Heidi. He obviously dragged her outside because she could not stand. His version supports that of the neighbour, except that he denies hitting Heidi. I prefer the evidence of Heidi and the neighbour that the accused was punching Heidi in the ribs. Considering the evidence as a whole, I find that the accused assaulted Heidi in a fit of frustration when she had overdosed on GHB and disrupted his evening. There will be a finding of guilt on count 4.

Assault: August 16th, 2014 (Count 5)

[85] The neighbour described an incident where, once again, the accused dragged Heidi down the stairs and threw her off the front porch onto the lawn or the walkway. The neighbour said he picked Heidi up, dropped her on the grass and punched her. Heidi has no recollection of this incident. The accused for his part, denies the incident occurred. There were no third parties involved and no hospitalization on this occasion.

[86] In my view, while this assault likely occurred, in view of the generic nature of what the neighbour described as a weekly event, and the inability of Heidi and the accused to recall the incident, I am left with a reasonable doubt as to what occurred in the circumstances. There will be a finding of not guilty on count 5.

Assault: November 1, 2014 (Count 6)

[87] Heidi testified about an incident in which the accused beat her up. She had clear and coherent recollections of this incident. The accused was at a party at his friend’s condo and he had brought along their puppy for some reason. He told Heidi she was to stay home because he was going to be selling drugs.

[88] Later in the evening the accused texted Heidi and asked her to come over and get the dog and bring it home. The text read “Just come say hi and take Blue plz”. She complied and when she got to the party she encountered the accused kissing and making out with a woman. This woman I will refer to as Complainant 6 (C6). The accused is charged with sexual assault against C6 and administering a stupefying drug to enable him to sexually assault her. This is discussed later in reference to counts 20 and 21.

[89] On the way home from the party Heidi texted the accused “I’m not get mad or cause a scene. I’m sorry I expect to walk into that. All I ask is you come home by yourself. Remember. The game plan in out goals”.

[90] Heidi went out to work and when she returned to the apartment in the afternoon the accused and C6 were there. C6 was passed out on the couch, partially unclothed, with her breast and vagina exposed, and with her head angled backwards “like a rag doll”.

[91] Heidi said she was angry and started yelling at the accused. A physical altercation ensued during which the accused grabbed her by the neck and pushed her to the floor pinning her against the dog crates. She said he also “smashed her head against the wall”. She was crying. This resulted in her having bruises on her arm and shoulder.

[92] Following this altercation, Heidi and the accused consumed drugs. When C6 woke up several hours later, Heidi assured her nothing untoward had happened and helped her on her way. Later in the day the accused showed Heidi the sex videos he had made while he had sex with C6.

[93] The accused’s version of events matches Heidi’s, except only that he denies roughing up or assaulting Heidi when she arrived home from work and discovered C6 lying unconscious in their apartment.

[94] In cross-examination Heidi admitted that when she got home she was “pissed-off” and probably hit the accused first: “true I was pissed-off, I did hit him first from time to time…yes I did antagonize him…yes I hit him hard…he’s a big guy”.

[95] I am satisfied beyond a reasonable doubt that the accused did assault Heidi in this incident. It seems likely that she provoked the physical altercation by hitting the accused first. This was likely typical of the fights the neighbour said she listened to once or twice a week. The evidence as a whole makes it clear that the accused assaulted Heidi often in the course of their altercations. I am satisfied this occurred in this incident. The accused is found guilty of assault, count 6.

Assault: November 7, 2014 (Count 7)

[96] The neighbour testified that she heard another fight involving the accused and Heidi and she heard Heidi “crying in pain” on this occasion. The next day Heidi asked the neighbour to call the bar where Heidi worked to say that she was unable to come in to work. The neighbour observed a hand-print bruise on Heidi’s bicep. It was certainly reasonable for the neighbour to suspect that Heidi had been assaulted in the premises during the previous evening’s altercation, which she had overheard. On the other hand, Heidi testified that she had no memory of being assaulted that evening but observed it was possible because the accused often hit her. The reason Heidi recalls asking the neighbour to call her work is because the accused had given her Ketamine instead of cocaine the evening before and she was unwell as a result. The accused, for his part, denied that this incident occurred.

[97] In the Court’s view there was no direct evidence showing that the accused physically assaulted Heidi on this occasion and Heidi, as noted, has no memory of being assaulted. The court has a reasonable doubt about what occurred in this instance and the accused is found not guilty on count 7.

Administering a stupefying drug to Heidi and sexual assault (Counts 8 and 9)

[98] It was Heidi’s evidence that the accused would often give her sufficient doses of GHB to “G her out” and she would wake up the next morning feeling as though she had had sex but not remembering anything about the actual occurrence. She told the accused never to do that again to her, but he persisted. She told the accused that she needed to consent to such activity, but his position was that they were a couple, with the result that he did not need consent from her. Ultimately, she decided to put up with his conduct and perhaps bought into his idea that he could do to her what he wished sexually because they were a couple. This issue was further clouded by her evidence that she often voluntarily consumed GHB, usually with the accused and others while they were partying. She said that GHB took the edge off the cocaine and that is why she often took the two drugs together.

[99] Heidi testified that the accused would slip Ketamine in with her lines of cocaine from time to time and would then have sex with her. She explained her objections to this. My interpretation of her outlook on GHB is that she was content to take it but not in doses that would cause her to blackout. I accept her evidence that the accused was expert at dosing the GHB to himself and to her – in other words, he had a close understanding of Heidi’s tolerance for GHB and of his own – so that when she overdosed on the GHB he gave her, this would not have been an accidental outcome. Heidi said that she did not like Ketamine at all and did not consent to him mixing it into her lines of cocaine. Once when he did this, she was sufficiently incapacitated the next morning that she had to ask her downstairs neighbour to phone the bar where she was a server, to say she was unable to come into work.

[100] When the accused was in jail in January 2014, Heidi discovered the accused’s collection of sex photos and videos on his laptop computer. These included videos of sexual activity with certain of the other complainants and there were also videos of the accused having sex with her (Heidi) while she was “G’d out”. This confirmed her belief that on a number of occasions the accused had drugged her and then had sex with her while she was blacked out or unconscious. She admitted that some of the videos depicted her and the accused having apparently consensual sex. She agreed that GHB made her sexually aroused. Regrettably, she proceeded to delete the videos that depicted the accused having sex with her.

[101] The accused’s position is that he gave Heidi GHB, and sometimes Ketamine, and that this was done openly so that the two of them could enjoy their high together and whatever sex ensued. As noted, Heidi acknowledged that they often did have consensual sex, when she wasn’t getting “G’d out”. She was also clear that at least by the time they lived on N[…] Street, she was so in love with the accused, and so desperately addicted to cocaine he supplied her, she would do anything he asked of her including complying with his sexual demands and enabling his sexual activities with other women.

[102] In conclusion, with respect to counts 8 and 9, I am satisfied beyond a reasonable doubt that the accused did on one or more occasions during the period March 1, 2011 and March 11, 2015 administer a stupefying or overpowering drug (GHB or Ketamine) to Heidi in order to have sex with her while she was incapacitated. I accept her evidence in this regard. Heidi’s evidence is supported by the similar fact circumstances involving the other complainants in this trial. The accused drugged women with GHB or Ketamine, without any true consent on their part, and he did so in order to have sex with them. He sought to have sex with incapacitated women in order to satisfy his own sexual preferences. The accused was also in the habit of making videos of his exploitation of these women and this lends support to Heidi’s evidence that she viewed videos of the accused made by him having sex with her while she was heavily drugged. I reject the accused’s evidence that his sexual activities with Heidi when she was heavily on GHB or Ketamine, was consensual sexual activity. I accept that on a number of occasions, the accused “G’d her out”, or slipped her Ketamine and sexually assaulted her while she was blacked out. There will be a finding of guilty on counts 8 and 9 of the indictment.

The individual complainants (Counts 10-38)

Overview

[103] For privacy reasons I refer to these women (other than Heidi) as complainants 1 through 14 and I cross-reference their number to the counts in the indictment. These 14 complainants, except for complainant 6, testified at the trial concerning the incidents involving them. The accused also testified about each of the incidents. In addition, Heidi testified about most of these incidents as she was present in the apartment in most cases. There were also cellphone pictures and videos of most of the incidents, taken by the accused or sometimes by Heidi, which were seized from the accused’s electronic devices following his arrest. Lastly, in most cases the Court was assisted by the opinion evidence of Dr. Sampsell as to what drugs were likely involved and as to the apparent level of impairment of the cognitive functioning of the complainants, as depicted in the videos.

[104] As will be seen, most of the complainants have no recollection of what occurred after they consumed drugs supplied to them by the accused. However, to the extent these complainants have recollections of the surrounding events, I found their evidence to be highly credible. The accused in his evidence acknowledged providing drugs to these complainants and having sex with them in most cases. The accused was in the habit of taking cellphone videos of himself having sex with the complainants. With respect to the cellphone images, Exhibit 1, Statement of Admissions, provides in part;

9. The “Victim Timeline of [name of complainant]” is admitted. All videos, images, texts and calls were recovered from Mr. P.N.W.’s iPhone, iPad or laptop. They have not been modified. All date and time-stamps of videos and images are admitted to be the accurate date on which the photo or video was created.

[105] Therefore, it is not contested that the images or text messages in evidence are those of the accused and the particular complainants. The specific chronology, dates and timing of the digital photo images, extracted by the police from the accused’s computer, are also admitted. The key issues for the Court are, with respect to the sexual assault charges, whether the sexual activity was consensual, or reasonably believed by the accused to be consensual. With respect to the administering a stupefying substance charges, the key issues are whether the complainants consented to consume the drugs GHB or Ketamine and whether the accused’s intent in giving the complainants these drugs was to enable him to sexually assault them.

[106] For the reasons elaborated in the following discussion of the individual counts concerning these complainants, the sexual assault charges are manifestly made out. The accused’s videos demonstrate in a graphic and disturbing manner that the accused enjoyed sexually touching these women and taking close-up images of their genitals while they were either heavily drugged or comatose and he retained and collected these images for his own purposes. None of the women were aware that they were being recorded and none had been asked or given permission, as the accused admitted. The evidence establishes, and I find, that none of the women realized they were being recorded because they were heavily drugged or had blacked out. Looking at these assaults collectively, or by way of similar fact evidence, serves to persuasively refute the accused’s own evidence that he was giving GHB to these women only when they agreed to take it, in order to enhance their high, and any sex that ensued was intended by him to have been a consensual activity, not a sexual assault.

[107] I will now consider the balance of counts alleging sexual assault and administering a stupefying substance, and related charges in the order in which they appear in the indictment.

Complainant 1 (C1) (Counts 10-12)

[108] These charges arise from the accused giving GHB to C1and having sex with her at her apartment (not the accused’s apartment) in the early morning hours of March 11, 2015. As discussed previously, immediately after leaving C1’s apartment at about 1:30 a.m., the accused returned to his and Heidi’s N[…] street apartment where the previously described major altercation arose following which the police arrested the accused and Heidi was taken by ambulance to the Ottawa Hospital and admitted to the intensive care unit.

[109] C1 was a 23 year-old first year law student. One evening in January or February of 2012 she was drinking beer at a bar near the university campus. This location was one of the accused’s hangouts where he sold drugs. A mutual friend introduced them. She and the accused went to a second bar that evening and she became, in her words, “very intoxicated”. They ended up spending the night in her bachelor apartment near the university campus. He gave her some cocaine, which was new to her. She said she was a bit nervous about this but the accused was calm and confident. They had consensual sex. He left the next morning. She said the next day was the worst day of her life because she had a terrible hangover.

[110] C1 said they did not make any particular arrangements to meet again and that the accused did not speak of his personal relationships. However, at the preliminary enquiry, she testified that the accused did tell her that he had a girlfriend but that they were in an open relationship.

[111] The second and last time (March 11, 2015) the accused and C1 met was again at the same student bar. On this occasion, she texted the accused and they arranged to meet. He came over to the bar and they stayed there for less than an hour. She had consumed 3 or 4 beers. She said this was a moderate amount for her and she was definitely not intoxicated. She had a detailed recollection of what she talked about at the bar, particularly about a dramatic production in which she had recently been involved. She and the accused agreed to go over to her apartment to get something to eat. The accused said that he needed to stop by at his own apartment briefly. She accompanied him to his N[…] Street apartment and waited downstairs while he got what he needed and they then walked to her nearby apartment. I find that C1 knew that the accused was getting drugs, which she assumed was cocaine.

[112] C1 said that while walking to her apartment the accused surprised her by putting some foul tasting liquid in her mouth, which she took to be some kind of alcohol. She said “what’s that?” and he responded “it’s just to make you more drunk”. From that point on she said that her memory blanked out, until the next morning, except for a brief flashback in which she recalled herself straddling the accused in her apartment. The Court viewed video from a lobby camera in the apartment building showing her using her key in the front door lock of the building and then opening her mailbox and getting into the elevator. She was able to do all this without apparent difficulty. C1 testified that she thought the video showed she was impaired. In the Court’s view any impairment to be seen in the lobby videos is minimal.

[113] C1’s next recollection is waking up in the middle of the night, naked (she always wears pyjamas), with her make up still on and her clothes strewn about. I accept her testimony that she has no memory of consuming drugs or having had sex in her apartment that evening. After awakening she also noticed that her iPad was missing and she found a glass vial under the counter, which did not belong to her.

[114] C1 said that she was able to get to class the next day but she was becoming increasingly anxious about what had happened. At first she focused on her missing iPad which she was sure the accused had taken. At 2:02 p.m. she sent the accused a text “when can I expect my iPad back?” and shortly after “you can bring it to the (name of bar) tonight”. Over the course of the day she hung out with friends who supported her concerns about what had happened to her. They encouraged her to call the police, which she did the following day. Forensic evidence established that the glass vial found in her apartment contained the drug GHB and a sexual assault examination carried out in hospital established that the accused’s DNA was found in her vagina. In any event, the accused admitted in his evidence that it was his vial of GHB found in C1’s apartment and that they had sexual intercourse after he gave her GHB.

[115] C1 testified that she had never heard of GHB and that she would absolutely not have agreed to take it.

[116] The accused gave his recollection of the incident of March 11th, 2014. He said C1 was a female he had previously met at a bar near the campus…“a really nice girl – yes we were friends”. He and C1 spent less than an hour at the bar that evening and at one point she followed him to the washroom and asked if he had any cocaine. He said that he had told her he was a drug dealer. Her question signaled to him that she “wanted to have fun”. They decided that they would go to her place, but he told her that they would first have to stop off at his apartment briefly so he could pick up “some stuff”.

[117] The accused testified that C1 waited downstairs while he went up to his apartment and got some baggies of cocaine and a vial of GHB. He denied putting GHB or any liquid into her mouth as they walked over to her apartment. Once in the apartment, he agrees that he took out the vial of GHB and the baggies of cocaine. He asked her if she would like to try some “G”. She said “what’s G?” He responded that “G is like Ecstasy…it gives you a buzz…makes you feel a bit more drunk”. He said she “agreed to try some”. He initially said he gave her 1/5 of the vial and he consumed the rest. She remarked that it tasted “gross”. He said she made some drinks for them and they also consumed cocaine.

[118] In cross-examination it became clear that the accused could not reliably say how much GHB he had given her. This vial contained 5 mls. of GHB and I conclude that the likelihood is that he gave her at least half of the vial. He agreed that he did not attempt to measure it out and simply put the vial to her lips. I accept Dr. Sampsell’s evidence that half a vial can be a high dosage for someone who has no tolerance for GHB. Dr. Sampsell’s opinion was that given the quick onset of absence of memory and the four hours or so of no memory, C1 would not have been able to make decisions or appreciate choices, once she had consumed the GHB. I find that, the sexual activity which the accused admits occurred and which C1 cannot remember, occurred after C1 was given GHB.

[119] The accused in his testimony provided a graphic description of his sexual interactions with C1 that evening, which he purported to remember in vivid detail. It was my impression that the detail of his evidence was designed to answer any suggestion that C1 was incapacitated or comatose from the GHB. I did not find this evidence credible. It was a self-serving and disingenuous attempt to portray his activities as consensual. I find that the reason that C1 did not recall any of the sexual activities, was that she was heavily drugged by that point.

[120] In summary, the accused administered a stupefying drug (GHB) to C1 so that he could sexually assault her, that is to say, so that he could have sex with her while she was incapacitated to the point of being unable to consent to or decline the activity. In this regard, his sexual interaction with C1 mirrored his approach in each of the other counts involving the other complainants. C1 had never taken GHB before. The accused’s explanation of the effects of the GHB was highly misleading and inaccurate and was designed to be so. I find there was no operative consent to taking GHB, that the accused physically administered it to C1 by putting the vial to her lips and he did so in order to have sex with her once she was incapacitated. Whether he dosed her with GHB before or after arriving at her apartment is not of any real significance.

[121] I therefore find that the Crown has proven beyond a reasonable doubt the administering charge (count 10) and the sexual assault charge (count 11).

[122] It is alleged in count 12 that the accused stole C1’s iPad. The accused in his testimony admitted removing C1’s iPad and taking it to his apartment, as a step in his plan to download music on it and return it to C1, something he said they had discussed while in her apartment. I am prepared to believe the accused’s evidence on this issue. The accused seemed to be interested in maintaining a relationship with C1, as indeed he was with the other complainants, in order to minimize scrutiny of his actions. Downloading music on C1’s iPad, ostensibly as a friendly gesture to promote or continue a relationship with her, is entirely possible. I therefore find the accused not guilty on count 12 of the indictment.

Complainant 2 (C2) (Counts 13 and 14)

[123] C2, a 29 year-old government employee, accompanied two friends to the apartment of the accused and Heidi. Her friends were buying cocaine, something C2 had never tried herself. She was introduced to the accused and Heidi and they had a friendly conversation. A few weeks later on a Saturday evening (February 23, 2014), she celebrated a friend’s birthday at a bar in the Market area. She ran into the accused later that evening and he invited her to come back to his place. “I was under the impression I was going for a drink and that Heidi wanted to see me…so I was headed over to have a drink with these new friends”. She had consumed 4 – 8 drinks of rum and coke. She described herself as feeling intoxicated, although this did not affect her memory and she said she had no trouble following the accused’s directions to the B[…] Street apartment.

[124] Upon arrival, she went into the apartment and sat on the couch. Heidi was present with a female friend and they were introduced. The accused asked if she would like a drink and she said yes. The accused then went to the kitchen and returned with a drink for her. The drink was pink, served in a shot glass and she assumed it was alcohol. At that point she has no further memories until she woke up the following morning, completely naked and lying in a pool of her own urine. She was in the bedroom lying on her back “I was really scared, did not know where I was, I was confused and disoriented”. The accused was lying next to her in bed, partly undressed. Heidi was at the foot of the bed saying “you’re okay, you’re in a safe place, rubbing her back”, which she said made her even more scared. She said she was embarrassed and in shock. She put her clothes on – they called her a cab and she went home. She said the accused was acting like they had had a fun night, although she observed Heidi to be looking worried. Over the course of the following day, she noticed that her anus and vagina were sore and she had several unexplained bruises, one on her upper breast area.

[125] Over the next few days, she received some sexually suggestive texts from the accused, which she said scared her. Later, her friend accused her of being a slut because the friend’s boyfriend had seen sexually explicit pictures of her on the Internet. She contacted Heidi who said she knew nothing about this. C2 emphasized that she did not knowingly take any drugs that night “I’m not in the drug scene at all”. She confirmed that she had never had memory problems following alcohol consumption and she had never urinated herself while sleeping.

[126] The accused gave his version of events. He said when C2 arrived at the B[…] Street apartment, Heidi and a girlfriend were there “I think the girls were doing some drugs”. He admitted he was interested in having sex with C2. He sent her a text while she was on the way over to the apartment saying “do you want to be bad?”, to which C2 did not respond. He agreed he received a text from C2 saying “I’m so drunk” but he said that to his observations “she had all of her faculties”. The accused admits he gave C2 GHB, as well as cocaine and some MDMA. At some point Heidi’s girlfriend left the apartment. He then described the sexual activity that both he and Heidi engaged in with C2. He said Heidi and I “both liked C2…she was a really nice person”. According to the accused the three of them engaged in sexual activity, with C2 taking a willing and active role. He described Heidi using a dildo on C2 and then he took the dildo and used it on C2. He said C2 was not in her own urine at any time, but that it was vaginal fluid. At one point he started to get the impression that C2 was passing out so at that point he and Heidi backed off and had sex between themselves.

[127] Heidi’s version of events was to the effect that the accused was having sex with C2 while she took one photo on the accused’s instructions. She said she was not involved in the sex nor did she take the other photos or use the dildo at any time. She said she walked in on them at one point and observed that C2’s eyes were closed, her arms were flailing and her head was bobbing while the accused was laughing. C2 was soaked in urine. She went on to admit that as C2 lay unconscious on the couch she and the accused had sex beside her. She insists the accused inserted a dildo into C2 while C2 was unconscious and she said she was instructed by the accused to take a photograph of this.

[128] I would observe that the issue of who, as between Heidi and the accused, was more involved in the sexual activity with C2 is of little importance because in either version they were working together in perpetrating a sexual assault and, in either version, the accused was the principal perpetrator.

[129] As between the accused and Heidi, they took a series of digital photographs of C2 while she was clearly unconscious. These photos were taken over the period 5:13:24 a.m. to 5:54:51 a.m. on February 23, 2014.

[130] In these disturbing images C2 is seen lying on her back on a mattress, naked – legs spread, surrounded by what I find was a pool of her own urine. In the first two images someone, either the accused, Heidi, or the accused and Heidi acting together has inserted a dildo into C2’s vagina and then placed it next to her mouth in the subsequent image. In the last two images, the accused could be seen sexually touching the victim. She is unconscious in all of these images. Dr. Sampsell’s opinion, which I accept, is that C2 throughout these images can be seen to be heavily incapacitated by GHB and well beyond the point of being cognitively able to consent to sexual activity or make any other decisions.

[131] In summary, the accused has captured in his own digital photos, an unconscious woman to whom he has admittedly given GHB. This occurred in circumstances inexplicable on any basis other than a deliberate drugging of the victim in order to render her unable to resist his planned sexual assault. I am satisfied the Crown has proven beyond a reasonable doubt the administering charge (count 13) and the sexual assault charge (count 14).

Complainant 3 and 4 (C3 and C4) (Counts 15 – 17)

[132] C3 and C4 were close friends and roommates. They worked in bars in the Market area and were acquainted with the accused and Heidi. On October 13th, 2014 the accused invited them to his apartment.

[133] When they first arrived, C4 played with the accused’s two pit bulls. Together with the accused and Heidi, they chatted in the living room and the accused brought out some drugs, specifically marijuana and cocaine. C3 had marijuana only – she explained she took medication for a mental illness so she was careful to draw a “hard block” at marijuana and alcohol – she never crossed the line to harder drugs. However, her friend C4 consumed cocaine with the accused and Heidi throughout the evening.

[134] Shortly after arrival the accused poured all four of them a drink of vodka and orange juice. C3 sipped the drink and noticed it had a chalky taste like drugs or pills were mixed in it. She said to the others that the drink tasted funny and she did not consume anymore of it. However her friend C4, Heidi and the accused consumed their respective drinks and further lines of cocaine.

[135] The accused’s evidence was that when C3 and C4 came to their apartment at about 2:00 a.m., he went to his drug safe and got marijuana and cocaine which he put out. Also, he offered everyone a drink, which was accepted and he then said he “pushed it” and said to everyone “you guys want G in it too?” C4 and Heidi said “Yes” and C3 declined. The accused said he was uncertain if he or C4 consumed more doses of GHB over the course of the visit. The accused testified that C3 decided to leave the apartment at a later point because she had to get to work that morning and Heidi had gone off to bed. He then described how he had sex with C4 and said she was actively involved and consenting. He admits that he took cellphone photos and videos of C4 without her knowledge or permission.

[136] C3 described her friend C4’s condition prior to her (C3) departure from the apartment. She said C4 became violently sick at one point and she and Heidi set up a makeshift bed for her in the bedroom. Sometime later C4 came back out to the couch and was sleeping. When it was time for C3 to leave to get ready for work, she attempted to wake up C4 so they could leave together. However, she was unable to wake C4. C3 testified that she slapped her across the face two or three times in an unsuccessful attempt to have her wake up. I accept this evidence.

[137] Finally, C3 said she decided to leave, “I made the poor decision of leaving her there”. I accept C3’s testimony that at the point she left C4 at the accused’s apartment, C4 was intoxicated and possibly unconscious but was fully clothed and the accused had not at that point made any sexual advances to either of them. Also, Heidi was present.

[138] Later in the morning, C4 came home to their own apartment. C3 said C4 was extremely upset and complaining of a loss of memory, saying she had flashbacks of coming in and out of consciousness with the accused on top of her and memories of having the accused’s penis in her mouth.

[139] C4 testified that she does remember consuming the orange drink given to her by the accused, but has no recollection of any discussion about GHB. She does not recall C3 slapping her in order to wake her up at the point C3 left the apartment. C4 said she lacked control of her body and had flashbacks of the accused assaulting her. She admitted to consuming a lot of cocaine over the course of the evening but said this typically resulted in her getting worked up and anxious, whereas she had never felt the way she did during that visit. She has no recollection of masturbating with the accused or engaging in oral sex with him.

[140] Dr. Sampsell was asked to provide her assessment of the video taken by the accused which depicts C4 in a highly drugged state.

Q. Assuming the facts that around 8 a.m. C4 could not be woken up with a slap, and assuming that she has no memory aside from this brief recollection to waking up to having sex with Mr. P.N.W., are you able to comment on her cognitive ability at the time of these videos?

A. I would say that she was fairly significantly dissociated with Ketamine at the time and that she would not be able to make conscious decisions or choices under that circumstance.

Q. What about having higher cognitive functioning?

A. I don’t believe so under the degree of dissociation that we see.

[141] As noted, once again the accused admitted taking videos of his sexual interactions with C4, without her knowledge or consent. I conclude that in this instance, as well as with many of the other women he chose to surreptitiously photo, the women were either comatose or so heavily drugged that they did not know they were being filmed, and were so cognitively impaired that they could not have consented to being photographed or to engaging in sexual activity.

[142] That was the opinion of Dr. Sampsell who, as noted, viewed the disturbing video of C4 being assaulted by the accused. The photos and videos taken by the accused were put to him in his examination in chief and in cross-examination. He persistently asserted that C4 was consensually participating in the sexual activity and pointed to any sound or movement on her part, as evidence of her willing participation. I found his testimony to be disingenuous and incredible and I reject it. The accused had no reasonable basis to think C4 was capable of consenting to have sex and he was well aware that she was incapacitated.

[143] On the basis of the evidence of C4, the accused’s own admissions as to his sexual activities with C4, Dr. Sampsell’s persuasive opinion and the accused’s own videos, I am satisfied that the accused assaulted C4 and drugged her to the point she was beyond having the cognitive capacity to consent to sex. The evidence also satisfies me beyond a reasonable doubt that the accused provided the stupefying drug, whether it was GHB or Ketamine, from his own drug supply, without obtaining informed consent from the complainant. He did this to render C4 compliant to his goal of having sex with her. I find the accused guilty on both counts 16 and 17.

[144] The Crown submits that the evidence supports a conviction on count 15, which charges that the accused administered a stupefying substance to C3, to enable himself to sexually assault her, or that he attempted to commit this offence. As noted previously, C3 declined to drink the pink alcoholic drink that was provided to her by the accused. The accused, Heidi and C4 did consume the drink. As noted C3 did take a sip of the drink and said that it tasted funny with a chalky-type of drug taste. Some four hours later, C3 got up and left the apartment to go home and get ready for work. She did this after trying unsuccessfully to wake up her friend C4, who she hoped would leave with her. As of the time C3 left the accused’s apartment, the accused had not made any sexual advances toward her, nor did he further attempt to give her any drugs other than the marijuana that she wished to consume. On this occasion, there was no sexual interaction between the accused and C3.

[145] I have a reasonable doubt that count 15 is proven, even as an attempt. I acknowledge the accused’s admission that he served all four people the pink drink that he said contained the GHB and which Dr. Sampsell says was likely Ketamine. C3 refused the drink which the other people chose to consume. There were no further relevant interactions between the accused and C3 over the course of the several hours leading to her departure. It appears to me that the accused had focussed on C4 as his sexual target for the evening, and not C3. Even considering the accused’s propensity to drug women and have sex with them, I am not persuaded that such was necessarily his plan in relation to C3 on this occasion. Accordingly, I find the accused not guilty on count 15.

Complainant 5 (C5) (Counts 18 and 19)

[146] C5 testified concerning an incident which occurred on August 1, 2014 in the early morning hours in the accused’s apartment on N[…] Street. C5 had come to the N[…] Street apartment to buy drugs. She had known the accused and Heidi for about a year and a half and was a co-worker with Heidi at a pub in the Market. She explained that she would text the accused and he would then meet her at his apartment at the time arranged. She would buy cocaine, speed and MDMA from him. She explained that she sometimes hung out with Heidi after work. She said Heidi and the accused had a very volatile relationship and she had witnessed him “hit her with his hand on top of her head”. She witnessed Heidi cower and apologize. She said she did not say anything because she was afraid of the accused as well…he was unpredictable, with angry outbursts…she had seen him fighting people on the Market. He adopted a flirtatious tone toward her and this made her uncomfortable.

[147] At around 11:30, after spending the evening drinking with a friend, C5 decided that she needed some drugs. She texted the accused and he said come on over. She did so shortly after, arriving by cab. It was her intention to buy cocaine. She testified that she arrived at the N[…] Street apartment at around midnight, planning to buy cocaine.

[148] Upon arrival, Heidi was present in the apartment. C5 said she and the accused each did a line of cocaine. She then asked for an alcoholic drink. The accused gave her a drink which tasted “salty”. She consumed the drink and commented on the salty taste. The accused responded that “he had put a little bit of GHB in it”. She knew of GHB and had taken it on one occasion before, with the accused. She had sipped it from a bottle cap. She continued to sip the drink expecting a euphoric calming high. It was her plan to leave shortly because she had to work at 9 a.m. She then blacked out…“my last memory was saying I’m really feeling heavy”. She said she was clothed on the couch and the accused was with her. Her next memory is waking up on the couch feeling cold and ill. She recalls the accused being present. She then remembers waking up on the kitchen floor, naked, lying under a blanket. The accused was asleep on the couch. Heidi was awake in the kitchen. C5 said that she smelled of urine and concluded that she had urinated herself. She kept saying to Heidi “what happened?”. Heidi assured her that nothing had happened. Heidi helped her get into some clean clothes. She was able to get outside and call a cab.

[149] C5 testified that she had no memory of anything sexual happening. The following day she developed anxiety and concern about what had happened to her during the period her memory was blank. She said she felt distrustful of the accused. Sometime later the accused texted C5 and sent an attached photo of her, passed out with her breast exposed. The accompanying message reads “so beautiful”. The following day she texted the accused objecting to the photo and he responded “okay, I’m sorry”. She said that she considered calling the police but then deleted the email and photo and attempted to forget about her concerns.

[150] The police recovered from the accused’s laptop, four photos of C5. Two of the photos showed C5 with her breasts exposed when she was clearly unconscious. There are also two close-up photos of C5’s vagina taken when she was lying on her back with her legs spread, almost certainly unconscious. I would observe that whomever was taking these images and manipulating C5 by exposing her breast and vaginal area while she was unconscious, was sexually assaulting C5. It is apparent from the circumstances that this could have been done only by the accused, with Heidi’s possible cooperation.

[151] The accused testified that C5 came over to the apartment to buy cocaine and the accused said “I was drinking G”. Heidi was around the apartment as well, consuming cocaine. He said C5 asked for a drink and he offered her some G if she wanted it, to which she replied “sure”. He also gave her MDMA. He said that “things got really foggy at that point” and he (the accused) may have blacked out on the couch. Later he woke up and C5 was beside him on the couch passed out. She had urinated herself and was obviously distressed. The accused said he called Heidi to come and clean up, which he said was her job. He went into the bedroom and fell asleep. He insisted that he did not take the photographs. He thinks Heidi must have taken the photos. He said he simply discovered these photos on his computer at a later date. He never discussed this with Heidi. He admits that he subsequently sent the naked breast photo to C5 and has no explanation as to why he did that.

[152] Heidi’s evidence was that she recalled C5 coming over to buy drugs. C5 loved their dogs and she was “super hyper and apologized for coming over so late”. C5 and Heidi did some cocaine together and Heidi then went to bed. Heidi later woke up and found C5 lying unconscious against one of the dog crates with one of her breasts exposed, naked on the bottom, sitting in a pool of urine. She said she knew that the accused had “G’d her out”. Heidi recalls cleaning up the urine and putting a blanket over C5 and sitting her up so she wouldn’t choke. She recalls that C5 was not conscious and “her arms were flailing about”. She recalls the dogs licking C5’s face without any response from C5. In cross-examination, Heidi stated “I did not take these photos, absolutely not”.

[153] In summary then, the accused admits giving C5 GHB and he was the one who mixed the drink. He acknowledged that it was normal practice for him to take pictures of the women he had sex with. I reject his suggestion that Heidi “must have taken the photos”. He treated the photos as his own when he sent one of the images to C5 attached to a text message. I am satisfied beyond a reasonable doubt that the accused was the person who took the photographs of C5’s breasts and genitals and in doing so he sexually assaulted the victim. Based on the similar fact evidence as a whole, I conclude that the accused’s purpose in giving C5 GHB was to incapacitate her or “G her out” so that he could sexually assault her. Heidi had no motive to undress this woman or take intimate sexual photographs of her. I accept Heidi’s evidence that she did not take these photographs.

[154] In reviewing C5’s evidence of rapidly losing consciousness and having viewed the images taken of C5 showing essentially that she was unconscious, Dr. Sampsell offered the opinion that C5 would not have had the cognitive ability to consent to any sexual activity or to being photographed. I accept this evidence. I find the accused guilty on both counts 18 and 19 of the indictment.

Complainant 6 (C6) (Counts 20 and 21)

[155] C6 did not testify at this trial. Nevertheless, there was a significant amount of evidence relating to counts 20 and 21. The accused is alleged to have sexually assaulted C6 (count 21) and to have administered a stupefying drug to enable him to commit sexual assault (count 20). In relation to this incident, the Court heard the evidence of the accused and of Heidi, and viewed a series of videos and images taken by the accused on his cellphone. In fact the accused took two series of videos, 6:39 a.m. to 6:41 a.m. on November 1, 2014 and then 1:39 p.m. to 1:49 p.m. As in the other cases, the accused admitted that he took the videos of C6 without her knowledge or permission. Dr. Sampsell viewed the videos and gave her opinion as to the very obvious lack of cognitive capacity of C6 during the sexual interactions between C6 and the accused in both sets of videos.

[156] The accused testified that he went to a party at a friend’s condo, without Heidi. He went there to sell drugs so he had with him a supply of cocaine, GHB and MDMA. He commented that mostly he drank alcohol and smoked cocaine at the party. He ran into C6. He said it was nice to see her again…“we hung out and flirted at the party and we both consumed cocaine and went to a closet periodically to fool around”. The accused said he was attracted to C6. People started to leave the party at around 2:30 a.m. Sometime after that the accused brought C6 back to his N[…] Street apartment.

[157] The accused testified that once back at his own apartment, he pulled out MDMA, cocaine and weed and he also asked C6 “do you want some G?” She said yes, following which they both did GHB and listened to music and they had sex on the couch. Ultimately, Heidi returned and they all consumed more drugs. The accused did not say anything about Ketamine.

[158] The videos before the Court, which the accused acknowledged having taken without C6’s knowledge or consent, show the accused sexually assaulting and manipulating C6. Throughout the videos it can be seen that C6 is heavily drugged, unable to speak and exhibiting what Dr. Sampsell described as classic signs of Ketamine consumption. This series of videos and images capture what I would describe as an egregious series of sexual assaults on C6 by the accused. No reasonable person could view these videos and conclude that C6 had the cognitive ability to make any decisions or to consent to sexual activity.

[159] Dr. Sampsell was of the opinion that C6 must have been dosed with Ketamine given that she was not unconscious but was nevertheless in a stupefied state, clearly unable cognitively to make any decisions whatsoever. I accept her evidence.

[160] During his testimony, the accused was shown the videos which he had taken. He admitted that C6 was incapacitated when he took close up photos of her genitals. He said “I am embarrassed and disappointed with my conduct”. He said “yes I overstepped…I was quite intoxicated myself which I know is no excuse”. He said “I’m really sad about my actions”.

[161] I find that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted C6 on this occasion. His sexual assaults were, as noted, graphically captured in the two sets of videos which he took. I would emphasize that those videos were taken seven hours apart. Following these events the accused sent copies of these videos to a male friend.

[162] With respect to the charge of administering a stupefying substance, I make the following observations. As noted, we do not have the evidence of C6 as to what recollections she has, if any. I find that the evidence, particularly the accused’s own admissions, establish that C6 was incapacitated from the consumption of GHB or Ketamine. The accused says he gave C6 GHB not Ketamine. He admits he was the source of that drug but contends that C6 was quite content to consume the drug. Dr. Sampsell said that the appearance of the victim in the videos showed classic Ketamine dosing. I accept her evidence. The accused had Ketamine in his apartment. I find that it is not necessary to determine whether C6 was incapacitated by GHB versus Ketamine because both drugs are stupefying substances and both were in the possession of the accused and whether one or the other or both, were administered to C6, the source was the accused. I also accept Dr. Sampsell’s opinion that given the long passage of time between the two sets of videos, C6 was dosed with Ketamine more than once.

[163] The accused’s defence to the allegations on this count, is similar to that which he offered with respect to most of the other women, i.e., that he shared these drugs with the women to enhance their high and to have fun sexually. He denies that he provided the drugs in order to incapacitate the women and sexually assault them. The similar fact evidence provides strong support for the inference that he gave women these stupefying drugs for a purpose and that purpose was to incapacitate them in order to sexually assault them. The fact that he repeatedly rendered these women incapacitated and sexually assaulted them leads to the strong inference that such was his intention. Further, I hold that he had no valid informed consent to administer these drugs by simply saying “do you want some G?” and receiving a response such as “okay”. Further, the stupefying aspect of these drugs was not only due to the type of drug but also due to the quantities administered. The accused did the dosing himself, which he admitted he was very good at. He clearly knew that small doses of GHB can produce a high and slightly larger doses can incapacitate a person and can even be life threatening. The accused never mentioned this. In any event, I specifically disbelieve the accused’s self-serving evidence that he asked C6 if she wanted “some G”. I find there was no discussion of Ketamine. I find that he had no discussion with C6 that could possibly constitute the obtaining of informed consent for either GHB or Ketamine.

[164] I find that the Crown has proven beyond a reasonable doubt the administering charge (count 20) and the sexual assault charge (count 21) and the accused will be a found guilty on each count.

Complainant 7 (C7) (Counts 22 and 23)

[165] The accused is charged with sexually assaulting C7 (count 23) and administering a stupefying drug to her for the purpose of sexually assaulting her (count 22), on June 1, 2014.

[166] C7 testified that while she knew the accused, they were “just friends” and she saw him mainly around the Market bars. She also knew Heidi through a mutual friend. She said that the accused asked her to help him and Heidi move to the N[…] Street apartment. Throughout the day she said she was drinking coolers of alcohol and using MDMA, which gave her energy. She found herself with the accused and Heidi at their new apartment in the evening. During the time at the accused’s apartment, the accused gave C7 an alcoholic drink in a cup. She says it had a “fruity taste”. There was no discussion of what was in it and she consumed the entire cup. Right after that she lost consciousness. She recalls later waking up at first on the couch. Her breasts were exposed and she was vomiting. She said for the next seven days she was “confused, dizzy and sick”. At the time she awoke Heidi was in the room lying on the mattress obviously nauseated as well. The accused was on the other side of the couch.

[167] C7 explained that she drank a lot of alcohol normally and had a high tolerance for it. The quantity she consumed that evening was not a large amount for her and she had never had similar symptoms from alcohol. In particular, she had never blacked out. She said that she had never taken GHB and would have refused to do so because she knew it was a date rape drug. She had never heard of Ketamine and would have refused taking that as well. She has “absolutely no memory” of having had sex with the accused. She would not have agreed to do so because she had a boyfriend and because Heidi was present. In cross-examination, C7 reiterated that she had been given a fruity drink tasting like alcohol. She does not recall slowly drifting off to sleep. Rather it was “full stop” once she consumed the drink. She denied that she and the accused were flirting that evening. She said “I did not ask to have my clothes taken off”. She never made out with the accused and had no idea that he had taken photographs of her. I accept C7’s evidence.

[168] The accused’s evidence was that he and C7 flirted throughout the day in the course of moving furniture to the new apartment. When they all got back to the new apartment he pulled out drugs from his safe. He said C7 was doing MDMA and some cocaine. He and Heidi were also doing drugs. The accused said “at some point I made “G” for us…at some point during the night”. Before the accused gave C7 the pink drink he asked “you girls want G in it?” He said he received the response “yeah”. He explained that he used his discretion as to how much G to put in the drink. He said he always puts small amounts “at first”. He purports to recall that just one drink of GHB was given out by him on this occasion and that was after everyone had taken some lines of cocaine. He said they listened to music and at some point Heidi wanted to go to bed. Then as between he and C7, things “led to him having sex…kissing began…she mounted me…she was on top of me”. He said C7, to his observation was able to control herself and was not too intoxicated to have sex with him. He said she started the flirting and the sexual contact and he went along with it.

[169] The accused attempted to explain the images he took on his cellphone. Again, he concedes that he did not ask permission of C7 to take photographs and she was unaware that the photographs were being taken. There were five images taken between 6:03 a.m. and 6:23 a.m. They are close-up shots of C7’s genitals and breasts. The 6:23 image shows C7 lying naked on her back, apparently unconscious. The accused said he was having consensual sex with her during this time, although he conceded she appears unconscious in the final image.

[170] Heidi testified that when she woke up C7 was lying on the couch with her eyes closed. She said C7 was non responsive and incoherent and had great trouble waking up. She was naked under a blanket. Heidi asked the accused “did you G her out?” and he said “no we were just having fun”. Later C7 woke up and Heidi helped her find her clothes and got her out of the apartment. After she left the accused showed Heidi a picture of C7 naked on the couch and photos of her breasts and vagina.

[171] Dr. Sampsell’s opinion of the photographs taken of C7 by the accused was that C7 appeared to be sedated and unconscious. She opined that she (C7) was not a person who would have been capable of thinking or higher cognitive functioning at the time the photographs were taken. I accept Dr. Sampsell’s evidence.

[172] I completely reject the accused’s evidence that C7 engaged in consensual sex with him. The photos depict him sexually assaulting her (for example, image 0345 at 6:03 a.m.). I accept C7’s evidence that she would never have agreed to consume GHB, that she would never have agreed to have sex with the accused and she never would have agreed to have her genitals photographed. In my view, this was an egregious sexual assault perpetrated by the accused. There will be a finding of guilty on count 23.

[173] I further find that the accused surreptitiously put GHB in C7’s drink in order to render her incapable of resisting him and he did that to facilitate his planned sexual assault. There is no other reasonable inference to draw, particularly when viewed in light of the accused’s actions toward the other complainants. There will be a finding of guilty on count 22.

Complainant 8 (C8) (Count 24)

[174] Count 24 alleges that the accused administered to C8 a stupefying or overpowering drug in order to sexually assault her. C8 was at the accused’s apartment in the early hours of June 11th, 2014 in order to buy drugs. Heidi arrived shortly after, having been discharged from hospital. She hung out with them and did “a few lines of cocaine”. Before arrival, C8 had had two or three drinks but she was not intoxicated, in her view. She commented that cocaine makes her very alert and awake. The accused gave her a drink, “he told me to drink it fast because there’s lots more where that came from”. He also gave her an alcoholic drink. She testified that all of a sudden her body felt very heavy and it was almost impossible for her to move or to speak. She recalls the accused saying “it’s okay, don’t worry…just enjoy your high”. She retreated to the washroom and said she felt very hot. She had taken a small dose of Ketamine two years previously and had very bad memories of the event. She had the same feelings on this occasion except magnified a hundred times. She said “I realized I was overdosing on what he gave me and I was not going to be okay”. She became anxious, she opened the bathroom door and told the accused “I need an ambulance…I need to be seen by a doctor”, and she recalls the accused’s responding “just relax and enjoy your high”. She said that she believed that as soon as she closed her eyes, “they were going to rape me”.

[175] While in the washroom, C8 was able to make two 911 calls on her cellphone. The recordings of these calls were played in court. C8 is heard to be desperately trying to speak. At one point she tells the 911 operator “they drugged me and I’m in the washroom”. She was ultimately able to get out of the apartment and she does not suggest that the accused or Heidi attempted to prevent her from doing so. The police were cruising the area as a result of the 911 calls and C8 was located and taken by ambulance to hospital. She did not tell the police that the accused had drugged her because “for my safety I did not want to rat him out”. However, later at the hospital she did give a police officer the accused’s name and some type of explanation of what had occurred.

[176] In his testimony, the accused denied giving C8 GHB or Ketamine that night. The accused said he pulled out some drugs from his Tupperware container. He arranged some lines of cocaine. He gave C8 an alcoholic drink, either rum or vodka. The accused explained that he was very careful about the drugs in his apartment. They were all arranged in color coded containers, except for the GHB which he kept in the freezer. Ketamine was kept in a yellow container. He emphasized that he knew “exactly” what drugs he was giving out at any time even when he himself was somewhat impaired. He said he never put a wrong lid on a jar and he could tell exactly what drug it is by looking at it. He asserted that he never mixed Ketamine with cocaine. I accept that the accused was very knowledgeable about the drugs which he kept in his apartment and sold to customers. He was very knowledgeable about dosing GHB and Ketamine. I am satisfied that accidental overdosing did not occur and that at all times, even when the accused himself was impaired, he knew exactly what he was doing with respect to the drugs that he was giving out. However, while the accused’s dosing of his drugs was deliberate I have much less confidence that he accurately recollected which drugs he had given to which women.

[177] The accused related that the police later came to his door and made mention of a woman in distress in the bathroom. He said he assured the officers that no one was in the bathroom and then he accompanied the officer in a tour of his house, including the bathroom. He said the officer was in the apartment for “not even a minute” and that he (the accused) was fully cooperative. In contrast, the Court heard the evidence of Constable Irwin. He had been cruising the area having received dispatch information “female on line saying she had been drugged”. He approached 403 N[…] Street and there were paramedics present administering to C8. She was crying and upset and not making much sense and was unable to answer questions. Constable Irwin said he and another officer walked up the stairs and knocked on the accused’s apartment door. He said the accused answered the door. He told the accused a female outside claimed that she was drugged…”was she at your place?” He said the accused said he was with a girlfriend and there was no female there “no chick was here. I was sleeping with my girlfriend”. He said the accused refused to provide his name and he refused to permit the officers into the apartment. He also refused to summon his girlfriend or allow her to speak to the officers. The accused then shut the door in the officers’ face. Officer Irwin said that he was “100% sure” that he was not admitted into the apartment. I accept Constable Irwin’s version of what occurred that night and I reject the accused’s story.

[178] Dr. Sampsell’s opinion of the two 911 calls was that C8 was in a state of “euphoric dissociation”. She was further of the view that the likelihood was that C8 had been given Ketamine, although she could not be sure.

[179] Heidi testified that when she got home from the hospital, the accused explained to her that he had asked C8 to come over because he was worried about her (Heidi) being in the hospital. She described that the accused brought out several lines of cocaine which they consumed. After snorting one “very large line” of cocaine, C8 ran to the bathroom. Heidi testified that the accused was “smirking” and admitted giving Ketamine to C8. When Heidi followed C8 to the bathroom, C8 said “your boyfriend just drugged me”. C8 asked her to call an ambulance and Heidi refused suggesting a taxi instead. Heidi went out to the accused and said “she wants to call an ambulance…we’re fucked”. The accused said “take care of it”. Heidi testified “I told her he did not do this on purpose”. Heidi said she “felt like crap about it… I did not want two ambulances coming in the same night”.

[180] I am satisfied from the evidence just referred to, that C8 was overcome by a stupefying drug which she consumed while at the accused’s residence. The accused was supplying all of the drugs. I think it is extremely likely that he mixed Ketamine into one of the lines of cocaine given to C8. I accept Heidi’s evidence that the accused admitted to her that he had given C8 Ketamine. Did he do so for the purpose of sexually assaulting her? Here, I rely on the strong evidence of the pattern of conduct on the accused’s part that he drugged women in order to have sex with them. I am satisfied beyond a reasonable doubt that this was his intention on this occasion. There will be a finding of guilty on the administering charge, count 24.

Complainant 9 (C9) Counts 25 and 26)

[181] C9 and her boyfriend were acquaintances of the accused and Heidi, from the Market scene, and on the evening of April 19, 2014 were invited over by Heidi to their apartment.

[182] Both C9 and her boyfriend acknowledged being quite intoxicated by alcohol by the time they arrived. As always, the accused supplied the drugs consumed at his apartment. After consuming a drink supplied by the accused, both C9 and her boyfriend blacked out and lost their memory of subsequent events. The accused’s evidence was that he did put GHB in their drinks and that they consented to it. C9 testified that after consuming the drink she blacked out and has no other memory until the next morning when she woke up in her boyfriend’s apartment. She was wearing Heidi’s jogging pants and the boyfriend explained to her that she had urinated in her own jogging pants. C9 said she continued to feel very unwell for the balance of the day.

[183] There is little doubt as to what occurred after C9 consumed the GHB. The accused made a video of his interactions with C9 on his cellphone. Again, he admitted taking these images without the knowledge of C9, and without her permission. I find that C9 was unaware the video was being taken because she was unconscious and lying on her back with her legs limp and being manipulated by the accused. The video clearly shows C9 to be unconscious. The video shows the accused pulling away C9’s underwear and touching her vagina.

[184] In cross-examination, the accused acknowledged that he had reviewed the video and agreed that he was “a party to a sexual assault”. He said he was saddened by the video because C9 and her boyfriend were “close friends”.

[185] I am satisfied on the evidence that C9 was unconscious at the time the accused was pulling away her underwear and touching her vagina. C9 could not possibly have consented to the sexual touching. As noted the accused admits that he was sexually assaulting C9. I find that the offence of sexual assault is proven beyond a reasonable doubt and accordingly there will be a finding of guilty on count 25.

[186] With respect to the administering charge, the accused testified that C9 and her boyfriend willingly consumed the GHB. He cannot recall if he gave them 2.5 or 5.0 ml. He said he explained to them what GHB was, “it’s like Ecstasy, gives you a tingly feeling, makes you a bit more drunk, arouses you, when taken in moderation it’s a fun high…makes your muscles relax”. I reject the accused’s evidence that C9 and her boyfriend agreed to consume GHB. I accept the evidence of C9 and her boyfriend that they would never had consented to trying GHB. They each testified convincingly as to the reasons why they would not have considered taking GHB, particularly in the environment of the accused’s apartment. Moreover the explanation the accused said he provided about GHB was completely inadequate and misleading.

[187] The accused also denied he gave C9 the GHB with the intent of sexually assaulting her. I find that he did give her the GHB without her consent, that he did so in order to sexually assault her and that he did in fact sexually assault her. The accused’s conduct was consistent with the pattern of drugging followed by sexual assaults in each of these counts. I agree with the Crown’s submission that the accused’s dosing of GHB to the complainants, and in particular C9 in this case, was a means to an end, and that end was sexual assault. I find the accused guilty on count 26.

Complainant 10 (C10) (Counts 27 and 28)

[188] C10 knew the accused to be a drug dealer on the Market. The accused would frequent some of the bars that she typically went to following her shifts at a Market restaurant. In the early morning hours of August 12, 2014, she believes the accused was at the Senate Bar. She recalls having consumed three beers and two shots. She said that she recalled having one or two shots of whiskey and everything went foggy. She has no memory until she woke up in her apartment the next morning around 11 a.m. She felt dehydrated, nauseated and dizzy and had a hangover worse than any she had ever had before. She said her boyfriend picked her up and she went to his house and “just slept and slept”. She phoned in and cancelled her Wednesday shift at the restaurant. Remarkably, C10 has no memory of being at the accused’s apartment and no memory of any sexual activity with him. C10 also testified that she had no sexual interest in the accused. She knew of GHB, but had never taken it and would not have agreed to do so.

[189] The accused testified that he had known C10 for several years. He was selling drugs in the Market that evening and encountered her at the Senate Bar. He invited her to his apartment “to party”. They took a cab over to the apartment and it was the first time C10 had been there.

[190] When they arrived, he said they flirted and he pulled out his drug supply. Heidi was home but in the bedroom at the time. He made alcoholic drinks for them and they did some cocaine and other drugs (MDMA and marijuana). He said “there was GHB at one point…I provided it”. He said that he did say to C10 “want some G?” and she said “Yes”. The accused said that he did not explain what GHB was. The accused then went on to describe how he and C10 proceeded to have consensual sex.

[191] Once again, the accused admitted that he took pictures and videos surreptitiously with his cellphone. He did not ask permission of C10 to take these photos and he admits that she was not aware the photos were being taken. Once again, I conclude that the reason C10 and the other women were unaware the cellphone images were being taken is that they were heavily drugged.

[192] In my opinion, the videos taken by the accused show very clearly that C10 was incapacitated. Some of the images captured by the accused are close ups of C10’s genitals as she lay unconscious on her back with her legs spread. In image 0516 the accused is touching C10’s vagina. There are images of C10 apparently having an orgasm as the accused penetrates her digitally. Dr. Sampsell explained that an orgasm is a physiological reaction to stimulation and is no way an indication that a person is consenting or is conscious. In summary, these are very disturbing images of the accused sexually assaulting C10 in the most egregious fashion. I find him guilty of sexual assault, count 28 of the indictment.

[193] Count 27 of the indictment charges that he administered a stupefying and overpowering drug to C10 for the purpose of sexually assaulting her. As noted, the accused says that he gave C10 GHB after asking her if she wanted some and with no intent to sexually assault her. I note the accused’s evidence that there was, to his recollection, no discussion about GHB. I reject the accused’s evidence that he obtained consent from C10 to consume GHB. I accept C10’s evidence that she would never have agreed to take GHB if asked. I accept her evidence that she had no sexual interest in the accused. I reject the accused’s evidence that he was not giving out the GHB with a view of having sex with C10. On the contrary, he did sexually assault C10 in an egregious fashion and I conclude that was obviously what he had intended. This is consistent with his conduct in all the other cases referred to previously. There will be a finding of guilty on count 27.

Complainant 11 (C11) (Counts 29 and 30)

[194] C11 testified that she knew the accused and Heidi from the Market scene. C11 was a server employed in a Market restaurant. She would often go to “after parties” with Market workers. She attended the accused’s apartment on the evening of December 16, 2013. She said Heidi and a couple of other people were there when she arrived. The accused mixed her a drink and they smoked marijuana. The accused offered her an MDMA pill, which she took. She asked for a glass of water after she had taken the MDMA pill. She thought the water tasted funny and began to feel unwell. Her next memory was waking up and being very sweaty and lying prone on the couch. Heidi and the accused were present. With Heidi’s help she was able to pull herself together and get into a cab. She felt extremely ill for at least a day. She had no recollection of anything sexual happening at the apartment.

[195] C11 testified that she had never had GHB and would have refused it if asked. The accused described C11 as “a very good friend”. His recollection is that she was at their apartment for a couple of days at the relevant time. He recalled that they consumed cocaine, MDMA, weed and some speed. He reviewed in his evidence the videos which he took. They were taken without C11’s knowledge or consent. He admitted that it can be seen from the videos that C11 is on GHB. He admitted “there’s a good chance I gave it to her”. He acknowledged some of the images showed him sexually touching C11 while she was unconscious. He said “I’m very disappointed in myself. He said…“yes it’s wrong, morally, it is not right”.

[196] I find that the videos taken by the accused leave no doubt that C11 was unconscious while the accused sexually assaulted her. He has taken close up shots of her vaginal area and shots of her exposed breasts as he lay against her. Some of the images show his hands placed on her vagina and buttocks. The accused will be found guilty of sexual assault, count 29.

[197] The accused is also charged with administering a stupefying drug to C11 in order to sexually assault her (count 30). The evidence satisfies me that either the accused, or potentially Heidi working with him, dosed C11 with GHB. He then sexually assaulted C11, as the videos graphically depict. Viewing the evidence on this count, in light of the evidence as a whole, I am satisfied that C11 was drugged by the accused in order that he could sexually assault her. Did C11 in any sense consent to taking GHB? I accept the evidence of C11 that she had not taken GHB before and would not have consented to do so if asked. There will be a finding of guilty on Count 30.

Complainant 12 (C12) (Counts 31 -34)

[198] C12 was an acquaintance of Heidi, having worked in the bar scene on the Market and she knew the accused as she had purchased cocaine from him on multiple occasions. She went to the N[…] Street apartment only once and this is when the subject incident occurred. C12 testified that she ran into the accused and his friend A.1 at a Market bar at around 10 – 11 p.m. They had a few drinks and the accused asked if they would like to go to his place. C12 said she accepted, expecting they would do some cocaine and have a few drinks. She had not drank much that evening and she remarked that in her experience cocaine “sobers you up”. They drove to the accused’s apartment in A.1s Porsche.

[199] Once inside the apartment, they sat on the couch. Then the accused brought out what she thought was cocaine. It was a white powder in lines arranged on a book or plate. She said that she snorted it – just one line and then she rapidly blacked out. Her last memory was sitting on the couch fully clothed. When she woke up she was on the couch naked. The accused and A.1 and Heidi were there. She said she felt “awful, out of it and disoriented”. She said Heidi helped her get dressed…she had trouble walking and the zipper on her shorts was ripped. She was able to walk to her girlfriend A.2’s house, which was in the same area.

[200] C12 testified that she believes she was given Ketamine. She had taken Ketamine only once, about six months before. She had snorted it. She said it made her feel awful, like her body was paralyzed inside and out and she was unable to talk. She said she had decided never to take Ketamine again. She said she would have refused it if it was offered.

[201] At the time of her trial testimony, C12 had no specific memory of any sexual activity having taken place at the accused’s apartment on this occasion.

[202] Heidi testified that the accused told her that C12 and A.1 were coming over and she was to stay in the bedroom. At one point she heard a loud bang and left the bedroom. She saw C12 performing oral sex on A.1 while the accused was filming them on his cellphone. She next saw C12 get up and stumble into the washroom followed by A.1. She heard quite a bit of noise coming from the washroom and then C12 ran out of the apartment. A.1 left soon after.

[203] Heidi testified that once they had left, the accused told her that he and A.1 had an agreement that he would pay the accused or reduce their rent if he (the accused) would drug C12 so that A.1 could have sex with her. Heidi said she responded “Is this a whore house as well?”

[204] The accused’s version was that he came upon C12 and A.1 in a market bar and the two of them appeared to be interested in each other. He invited them back to his apartment. C12 had often bought drugs from him. A.1 was his landlord and also a drug customer. Back at the apartment C12 and A.1 were fooling around. The accused said he got out his drug supply (in his colour-coded Tupperware drug tray). He said he made some drinks and crushed some cocaine. He denied giving anyone GHB or Ketamine. He described C12 as being on top of A.1, kissing him and then giving him a blow job. He said C12 went into the washroom followed by A.1. They were in the washroom 15 minutes or so, while he and Heidi, who had joined them, sat on the couch and laughed at what they presumed was C12 and A.1 having sex in the bathroom. C12 and A.1 came out of the bathroom, C12 with her hair dishevelled and they all sat on the couch and did more lines of cocaine. A.1 did not stay around long. When he abruptly left, C12 said “I can’t believe he left me here”. He said C12 then got up to leave saying “I’m fine”. He says C12 was indeed “fine” and not out of control…“she seemed normal given the drugs we did”.

[205] The Court heard the evidence of two friends of C12. She went to their apartment immediately after she left the accused’s apartment. They testified that C12 appeared very upset and disoriented, expressing the view that she had been drugged.

[206] C12 expressed her views as to what happened in several text messages exchanged with the accused as follows:

All I’m saying is I’ve done drugs. And never felt like tonight other than when I did k

Line I know someone gave me k because I’ve done it before and that’s how I felt. I went from having clothes and dignity to being naked and ruthless on your couch and waking up to fucking A.1.

It’s not rape im not calling that. I’m not that girl. I’m just saying tonight what pretty fucked. And I’ve never been drugged before so I was fucked. I prob led him on and shit. But I know I was given more than cove. I do that every night and NEVER have I been like tonight.

[207] C12’s remarks to her friends and her texted comments to the accused are technically hearsay. Nevertheless, I admit them on the principled exception to the hearsay rule. That is to say, the necessity for admitting this evidence arises from the circumstance that C12 has no present memory of having sex in the accused’s apartment or of sending or receiving texts with the accused later in the evening. The reliability of these communications comes from the actual existence of the texts, the accused’s acknowledgement of the texts as a party to the texting exchange and the testimony of C12’s two friends who saw her shortly after she had left the accused’s apartment. The evidence which I ultimately accept is that at the point C12 left the accused’s apartment and upon seeing her friends shortly after, and when engaging in the text exchange with the accused, she was convinced she had been given Ketamine without her knowledge or consent. Dr. Sampsell was also of the view that C12 was likely incapacitated by Ketamine in this incident.

[208] I find that C12 was sexually assaulted by A.1 in the accused’s apartment. Shortly after her arrival she was offered a line of what she took to be cocaine by the accused. Any drugs dispensed in the accused’s apartment were always dispensed by him. No one else was giving out drugs in the apartment, except the accused himself (as he acknowledged frequently in his evidence). As Dr. Sampsell explained, Ketamine is white powder easily mistaken for and snorted as cocaine. I accept C12’s evidence that she had one previous very bad experience with Ketamine, was familiar with the effect it had on her and would not have agreed to consume it again. The evidence of the accused and Heidi was that C12 and A.1 were engaged in sexual acts while the accused was filming them with his iPhone. Unfortunately these images have not been found. Factoring in the similar fact evidence in this case, I find C12 to be yet another complainant drugged to the point of memory loss, by the accused in his apartment and again he was filming the sexual activity without the victim’s knowledge or consent. In this case the accused was apparently not having sex with the victim, but his friend A.1 was doing so while the accused watched and took pictures.

[209] I am satisfied beyond a reasonable doubt that C12 was incapacitated as a result of the accused having drugged her, likely with Ketamine, in order that A.1 could have sex with her. The accused clearly aided and abetted this offence and I find him guilty as a party to the sexual assault, count 32.

[210] I find further the accused administered a stupefying drug to C12, likely Ketamine, to allow A.1 to have sex with her without any genuine consent, in accordance with the pattern of drugging and sexual assault in many of the other counts. I find the accused guilty of the administering charge, count 31. Again, the accused is guilty as a party to the offence as the sexual assault was carried out by his friend A.1.

[211] The Crown has also charged the accused (count 34) with receiving a financial benefit knowing it was obtained by or from the commission of an offence under s. 279.01 (10) of the Criminal Code. This charge is included in the Human Trafficking provisions of the Criminal Code. Under s. 212(1) as it read at the time of the offences charged here, it was an indictable offence to;

Section 212(1):

Every one who

(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[212] It can be seen that this section requires proof beyond a reasonable doubt that (1) the accused acted for personal gain, (2) that he controlled the movements of the victim, (3) that he did so to compel the victim to engage in prostitution. In my view, the circumstances do not fit this charge, except in the most artificial sense. The Crown says the accused and A.1 drugged the victim, C12, to facilitate an act of prostitution, notwithstanding that C12 was unaware of this. The payment for C12’s sexual acts was in the form of a rent rebate A.1 is said to have agreed to give to the accused for facilitating the sexual activity by setting up the attack on C12. The evidence for this arrangement derives from Heidi’s testimony that the accused had told her that he had made such an arrangement with A.1.

[213] I entertain a reasonable doubt about several aspects of this charge. I am skeptical of the accuracy of Heidi’s recollection of what the accused supposedly told her about his deal with A.1. The financial evidence of any transaction between the accused and A.1 is perfectly consistent with drug dealing – A.1 was a customer of the accused as well as being his landlord. The course of events in the accused’s apartment is consistent with the accused once again indulging his personal interest in drugging women and enjoying the ensuing sexual exploits, but this time as a voyeur and photographer. The alleged surrounding transaction between the accused and A.1 is not proven to the criminal standard of proof, although it may well have occurred.

[214] Similarly count 33, alleging the accused received a financial benefit from sexual services (s. 286.2 of the Criminal Code), which requires the Crown to prove the accused received a financial benefit for compelling (by way of drugging) C12 to engage in prostitution, fails for the same reasons. The receipt of the financial benefit by the accused is not proven beyond a reasonable doubt. I am not satisfied that he reasonably can be said to have used C12 to engage in prostitution on the facts proven in this case.

[215] Accordingly, there will be a finding of not guilty on counts 33 and 34 of the indictment.

Complainant 13 (C13) (Counts 35 and 36)

[216] C13 impressed the Court as a very credible witness, an observation which, as noted previously, I would also extend to all 14 of the complainants. C13 testified that she was an acquaintance of the accused, through mutual friends. She also knew Heidi as they had worked together as servers at a pub in the Market area. She was used to having the accused drop into her workplace to chat from time to time. She knew the accused and Heidi were a couple. One evening during the winter of 2013, she ran into the accused late in the evening after she had visited some pubs with friends. She asked the accused how Heidi was. The accused invited her over to his apartment where she could visit Heidi. She and the accused walked over to the accused’s B[…] Street apartment and arrived between 1 – 2 a.m. C13 said she lived very near the accused’s apartment and intended to stay for a few drinks and then head home. She said she was feeling good, having spent the evening drinking, “but still had my faculties”.

[217] Upon arrival Heidi was present in the apartment with a girlfriend. The girlfriend left shortly afterwards. C13 accepted a drink from the accused, “I thought it was vodka or something”. Then the accused asked her if she “wanted some G?” She asked what it was, not having ever tried it. The accused gave her an explanation to the effect that it was much like Ecstasy…“you can make it yourself – it does not taste like anything”. C13 agreed to try it. She was familiar with Ecstasy which she had consumed in the past together with alcohol. It made her feel tingly and good “it’s a stimulant so you’re not a couch potato”. Based on the explanation provided by the accused, she expected G to make her feel like she had taken Ecstasy.

[218] The accused went to the kitchen and came back with a cola beverage which she believed had G in it and she drank it. At first she said it was a feeling similar to Ecstasy and she felt good. However, she said she then felt that she “needed to pass out – my eyes felt heavy and I took a seat on the couch…after that my memory was basically blank except for some flashbacks”. She said that her last specific memory was of her lying on the couch while the accused and Heidi pulled her pants off. She described that as “a brief moment of awareness”.

[219] C13’s next memory was of being in the bedroom, naked, engaging in sex with the accused on the bed. She was on top of him with his penis inside her. She said she was “so messed up and not thinking clearly…I was just so awestruck as how things escalated”. She said she was not able to make decisions. Later she recollects waking up on the couch, clothed…”I was so sick…crawling to the bathroom and vomiting repeatedly”. She recalls the accused was laughing and making fun of her and saying “you were G’d out”. The accused left the apartment while C13 stayed and talked with Heidi for a number of hours. She testified that she felt guilty for having sex with Heidi’s boyfriend…“I was so disgusted with myself…I had no interest in having sex with P.N.W.that night”.

[220] C13 also related to the Court some personal reasons she would not have agreed to have sex on this occasion. She said that she took two days off work due to feelings of illness and anxiety. She was not aware she had been photographed. She was very upset when a co-worker told her there was a video of her having sex with the accused.

[221] The accused’s testimony was that he asked if C13 wanted some G and when she asked what it was, he explained that it was “like Ecstasy…it arouses you and relaxes your muscles…it’s a fun drug to party on”. According to the accused he, Heidi and C13 then consumed GHB. He said the dosage he had initially put in their drinks was 2.5 to 5.0 ml. (i.e. up to a full cap), which was the accused’s usual dosage due to the high tolerance for the drug he had developed over time. The accused then described flirting with and having oral sex with both women and then Heidi withdrew somewhat and watched while he had active sex with C13’s participation, the details which he purported to recall and related in graphic detail.

[222] The accused said Heidi took the four photographs in evidence (Exhibit 42). One photo shows C13 on her hands and knees while the accused inserts a dildo into her vagina. The angle of the photo does not show C13’s face. Another photo shows the accused having intercourse with C13 from the rear, again with her face not visible. Both of these photos suggest to me that C13 was drugged and possibly propped up, although C13 appears not to be conscious. The other two photos show the accused having intercourse with C13 as she lies on her back. Her eyes are open in both photos and her facial expression is abnormal and suggests that she had been drugged. Once again these photos were taken without the complainant’s permission or knowledge and once again I conclude that this was obviously possible because C13 was too heavily drugged to know that this was happening.

[223] The accused testified that after the sex was over he had a conversation in the bathroom with C13. He said that they had said to each other “did that just happen?” C13 said “I’m so high”. The accused said that they talked and laughed about the experience.

[224] In cross-examination the accused was forced to admit that he had not been completely honest in his explanation to C13 of the effects of GHB. He conceded that GHB and Ecstasy have very different effects on a person…G is not like Ecstasy…Ecstasy is a stimulant and he acknowledged knowing this. He also knew GHB is known as a date rape drug. He also acknowledged that he knew that GHB can cause blackouts and amnesia and agrees that he had not mentioned this to her. The accused further conceded that he wanted C13 to take GHB, although he denied it was because he wanted to have sex with her. He also explained that his thinking at the time was that if a woman was not objecting to having sex, then the failure to object constituted consent. He also explained that he would assess consent on the basis of a woman’s conduct during sex, not on questions or discussion they might have prior to having sex.

[225] Heidi’s evidence was that the accused had given C13 GHB to have sex with her. She described C13 as showing “classic GHB” with her “arms flailing as he moved her around”. She said the accused told her to take the four photographs. She seemed to deny that the sexual encounter started out with her own involvement. She said she came in and out of the bedroom about ten times to observe the accused having sex with C13.

[226] Dr. Sampsell testified that this was an example of classic GHB intoxication. She believes C13 was dosed with GHB more than once. The photos appeared to be taken, Dr. Sampsell said, at the euphoric stage (i.e. the initial stage after consumption), because C13 is able to apparently maintain her muscle posture and hold her head up. After this, Dr. Sampsell advised that C13 would have gone into a period of significant sedation where there would not be higher cognitive functioning and no decision making ability. She said the brief flashes of memory are typical of GHB intoxication.

[227] In summary, I accept C13’s testimony, including her evidence that she had no intention of having sex with the accused. I find that the accused incapacitated C13 with GHB after providing her with a completely misleading explanation of what it was. Following this, as was his intention, he had sex with C13, fully aware she was incapacitated. He instructed Heidi to take photographs of this knowing that C13 could not consent to being photographed because she was heavily drugged. I am satisfied that the Crown has proven the sexual assault charge (count 36) and the administering charge (count 35) beyond a reasonable doubt and there will be a finding of guilty on both counts.

Complainant 14 (C14) (Counts 37 and 38)

[228] C14 was an acquaintance of the accused and Heidi from the Market bar scene. On January 10, 2014 she encountered the accused in a bar and accepted his invitation to go back to his apartment for an “after party”. She said she had consumed eight to ten drinks over the course of the evening which was “pretty average for me”. She and the accused had agreed that C14’s friend Andy, a bartender at a market bar, would come over and join them when he went off shift at about 3 a.m.

[229] C14 did not recall seeing Heidi at the accused’s apartment. C14 remembers the accused giving her a mixed drink and prior to that they had consumed a line of cocaine. After the drink, she blacked out and has no memory until hours later, when her friend Andy was helping her get out of the building and into an ambulance that took her to the Montfort Hospital. She has no memory of anything sexual taking place. When she woke up she was wearing someone else’s clothes. She said never before this had she urinated or defecated while taking drugs, nor had she suffered a memory gap of any kind. She said it had not been her plan to stay over at the accused’s apartment, but rather to go home with Andy after he had arrived. She had heard of GHB and knew it to be a date rape drug and would have refused it if offered. She had never had Ketamine but would not have agreed to take it.

[230] C14’s friend Andy was initially having trouble finding the accused’s apartment. He received a call from the accused who said that C14 was “freaking out and defecating and vomiting…get over here”. He had earlier received what he described as a very confused call from C14 asking him to come over because things were “getting weird”. Upon Andy’s arrival, he found C14 passed out on the floor, naked under a blanket. He and the accused and Heidi moved C14 onto the couch and put her soiled clothes in a bag. Andy explained that he figured that he would simply let C14 sleep it off and therefore he and the accused proceeded to consume lines of cocaine while she slept. However, the accused showed Andy a video that he had taken earlier of C14 performing oral sex on him. Andy said the accused had shown him videos of this sort on prior occasions. The accused offered Andy Ketamine, but he declined. By 7 – 8 a.m., C14 finally awoke and Heidi dressed her in clean clothes. C14 began to say “I have to get out of here”. Andy helped her to get down the elevator and, once outside, somewhat reluctantly called an ambulance. At that point, he said he was feeling pretty rattled and buzzed as he and the accused had been drinking and doing drugs for four to five hours at that point.

[231] The accused’s evidence is revealing. At his apartment he said he offered C14 GHB and she agreed to take it and consumed a 5.0 ml. cap full. The accused conceded that this quantity is sufficient to incapacitate someone with a low tolerance for GHB. The accused said he did not discuss GHB with C14 because he and C14 had taken it before. I prefer C14’s evidence that she had never done GHB before and would not have agreed to do so.

[232] The accused said things then proceeded to sexual activity with C14 a willing and active participant. However, once again, the accused chose to make videos and photos of his sexual activities. These images speak for themselves. They are disgusting beyond description. In one photo C14 is lying naked, with her legs spread in a pool of her own urine. The accused took close-up photos of C14’s genitals being touched by him. The accused admitted C14 was unconscious as he touched her genitals. He says that at some point Heidi joined them and helped to expose C14’s breasts and put sunglasses on her as he took further demeaning videos and still shots of her. The accused said Andy arrived after the sexual activity and after the photographs had been taken. The accused agrees that he told Heidi to clean up. The accused admitted that C14 did not consent to him taking video images of her, nor did she know he was doing so.

[233] Heidi testified that she initially stayed in the bedroom during the events as she did not want to see C14. However, later the accused called her out and said that he needed her help. She saw C14 lying passed out in a starfish position on her back on the floor in a pool of her own urine, naked below the waist. Heidi said she knew that the accused had “G’d her out”. The accused told her to “clean up the pee” and give C14 some clothes. Heidi said that when she asked “what did you do?”, the accused responded that he had taken some videos and would show her later. She said that subsequently the accused admitted he had “G’d her out” and he “smirked”. Heidi said that the accused said he had put something into C14’s vodka.

[234] In summary then, the evidence includes videos of the accused photographing and touching C14’s genitals when she was unconscious. I also find the video shows him engaging in sexual acts with C14 when she was incapacitated and unable to consent. I find that he drugged her surreptitiously with GHB, or possibly Ketamine, or both, for the purpose of incapacitating her so he could sexually assault her.

[235] I find that C14 was the victim of a deliberate drugging and subsequent sexual attack, just as in the incidents involving most of the other complainants. Once again, the accused was able to take cellphone videos and still images of his victims, without their knowledge or consent, because at the time he did so, the women were too heavily drugged to observe him doing this and, at the same time, were incapacitated in terms of their ability to provide consent to sexual activity.

[236] I am satisfied that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted C14 (count 37) as well as the administering charge (count 38) and there will be a finding of guilty on both counts.

DISPOSITION

[237] To summarize the Court’s findings, the accused is found guilty on counts 1, 2, 3, 4, 6, 8, 9, 10, 11, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36, 37, 38 39, 40, 41, 42, 43, 44, 45.

[238] The accused is found not guilty on counts 5, 7, 12, 15, 33 and 34.

Mr. Justice C.T. Hackland

Released: 2017/09/28

CITATION: R. v. P.N.W., 2017 ONSC 5698

COURT FILE NO.: 13-RM2312

DATE: 2017/09/28

BY ORDER OF THIS COURT MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE NO INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS MAY BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

P.N.W.

accused

REASONS FOR JUDGMENT

Hackland J.

Released: 2017/09/28