R. v. M.R., 2017 ONSC 5891

CITATION: R. v. M.R., 2017 ONSC 5891

COURT FILE NO.: 14314/16

DATE: 20171006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.R.

Defendant

Brian Guertin for the Crown

I. Paul Greenway for the Defendant

HEARD: August 29-31, September 1 and 7, 2017

reasons for judgment

Boswell j.

I. INTRODUCTION

[1] MH is a 25 year old male. Three years ago he worked for a company owned in part by MR. MR is a 64 year old male. MH made some mistakes at work. MR invited him to a meeting to discuss his mistakes and the status of his employment. The meeting took place at MR’s residence. The meeting turned into dinner and drinks. MH got drunk and may have passed out. MH says that when he awoke, he found MR fondling his genitals and squeezing his buttocks. He further says that when he tried to leave, MR grabbed him and prevented him from doing so. MR was indicted and tried on charges of sexual assault and unlawful confinement.

[2] MR elected to testify and he denied engaging in any criminal conduct. He says that MH drank excessively while at his residence and dozed off. Several hours later MH had what MR describes as a seizure. He awoke in hysterics and began to hyperventilate. When MH attempted to grab his car keys and leave, MR stopped him from doing so. MR denies that any sexual assault occurred. Though not required to prove anything in this case, MR attributes MH’s hysterical episode to a combination of drunkenness and a nightmare.

[3] The following reasons explain my verdicts on each count.

II. THE EVIDENCE

Evidence Tendered by the Crown

The Complainant

[4] The events giving rise to the charges all occurred between Friday August 15 and Saturday August 16, 2014. The following is an overview of the evidence given by MH about these events.

[5] In the summer of 2014, MH was in his early 20s; a recent college graduate. He worked for MR’s company at a municipal airport; a job he had held for about three months. He was working the midnight shift on August 15, meaning he worked from midnight to 8 a.m. that day. During his shift, he damaged an aircraft. He called MR in the early hours of the morning to let him know what had happened.

[6] MR arrived at the airport at about 6:30 a.m. He spoke briefly to MH. This was not MH’s first mistake on the job. MR told him that he would have to let MH go. This naturally upset MH and he retired to a washroom where he cried. MH testified that when he emerged from the washroom, MR expressed a change of heart. He told him he didn’t know why he was doing it, but he was going to give MH another chance. According to MH, MR told him to falsify his incident report about the damaged aircraft to cast the blame on a piece of equipment. MR further told him they would have to have a meeting later to discuss his employment. He said MR told him the meeting would have to be held in secret as he did not want any of his business partners to find out about it.

[7] After his shift, MH went to his parents’ home. He smoked some marijuana and went to sleep. At about 6:30 p.m. his sister went to check on him about dinner. She testified that he was on the phone. She said she assumed it was with work, but conceded under cross-examination that she has no idea who he was talking to. He told her he did not want dinner and she went off to the grocery store. When she returned home he was gone.

[8] MH testified that he connected with MR later in the day by telephone. MR told him to come to the airport for the meeting. When he arrived at the airport he met MR in the parking lot. He asked if it would be alright with MR if he just ran a couple of quick errands before the meeting. MR was agreeable and told him to meet him at a local Canadian Tire parking lot after his errands were done. They would then go to MR’s house for a discussion. Again, MR stressed that no one was to find out about the meeting.

[9] MH said he met MR in the parking lot as instructed, then followed him back to his residence, not far away. MH was unsure of where the house was and was not well-oriented by the time they reached MR’s home.

[10] MH followed MR inside the home. MR offered him a drink and MH helped himself to a beer. Then MR offered him a dinner of steaks and fries. MH was not feeling hungry but, being a polite guest, agreed. He offered to barbeque the steaks and did so. When dinner was ready, he and MR went downstairs to eat and watch television.

[11] MR had a rec room downstairs, with a large L-shaped sectional couch, projection television and a full, wet bar. Most of the remainder of the night’s events allegedly took place in this rec room.

[12] After dinner MR offered MH a shot. MH said he declined because he didn’t feel well. He said MR told him that he was going to be getting drunk because MR wanted him to feel some of the pain that MH had caused him through his mistakes at work. MH relented and drank a shot of rye whiskey.

[13] Before drinking the shot, MH went to the bathroom. While in the bathroom he texted with a friend; a girl he had recently met. He told her he was at his boss’ house having drinks. When he exited the bathroom, MR asked him if he had told anyone what he was doing. MH admitted telling his friend that he was at his boss’ house. He said MR became upset and said that MH had broken his trust by telling someone about their meeting.

[14] MH thinks that MR joined him in the first shot, though he is not sure if MR actually drank his whole shot.

[15] After the first shot MH did not feel well. The shot was Crown Royal rye whiskey – not something he would normally drink, especially straight up. His stomach was upset. He sat down on the couch. MR told him he needed to drink a shot every commercial. But when the next commercial came on, MR said he looked like he wasn’t ready, so he waited until the following commercial break. When that came, MH took another shot of rye. He poured it himself. He doesn’t remember MR drinking with him. When asked, under cross-examination, why he didn’t just fake drinking, or pour the shot down the drain, or even refuse to drink, he was not sure what the answer was.

[16] MH denied a suggestion by defence counsel that MR had merely told him to “help himself” and further denied that he was responsible for his own consumption. He said he only drank when MR told him to do so.

[17] MH sat down on the couch again after the second shot. He said MR asked him if he was cold or anything and told him to get comfortable and move closer to him. So he did. He moved over to the corner section of the L-shaped couch. MR was sitting on the shorter section of the L.

[18] Some conversation followed. MR told MH he should be very disappointed in himself given his mishaps at work. He asked if MH’s parents had hurt him. MH said that yes, his father had hurt him, but it wasn’t that bad. MR responded that his father must have hurt him really bad, then put his arm around the back of MH’s torso and pulled him over his lap, saying, “it’s okay”.

[19] MH said he was crying and upset at this point because he did not want to think about the hurt his father had caused him. MR told him he was just like Tommy in maintenance and that MH could be his new, adopted son. He is not sure what other conversation occurred, but remembers MR kissing him on the forehead. This made him uncomfortable and he sat up.

[20] Another commercial came on television and MR told MH to get another drink, which he did. MR did not drink with him. After this drink he felt really sick. He asked MR if there was anything else he could drink. MR told him to grab a beer out of the bar fridge, which he did. He recalls drinking some, but not all of it. When questioned under cross-examination about why he drank a beer when he already felt sick, he could not answer, other than to say that it was the only other drink that MR mentioned. He agreed that there was a working sink in the bar and that nothing prevented him from drinking water.

[21] MH made his way back to the couch and sat down. Moments later, he leaned over and threw up between his legs and onto the floor.

[22] MR approached him and told him that he had vomit all over his clothes. MR suggested they throw the clothes into the laundry. MH said that he asked MR if he could go to his car to see if he had any spare clothes. MR said, no and provided him with a bathrobe to wear instead. MH took the robe. He took off the jeans and shirt he was wearing. MR asked for his underwear, but he said no. He then heard the laundry machine come on.

[23] It is at this point that MH has a memory loss of indefinite duration. His next memory is of waking up lying on the L-shaped sofa, with his head in the corner and his feet towards the long end of the couch. He realized that his underwear was now down around his knees. MR was standing beside him with his belt undone, his pants unbuttoned and his zipper down. MR was fondling MH’s penis and rubbing his buttocks.

[24] MH said he moved and pushed his back up against the couch. He hoped MR would realize he was waking up and stop what he was doing. He reached for his underwear to pull them up. At this point MR grabbed at his buttocks again and he felt something penetrate his anus. He does not know what, other than to say he is confident it was not MR’s penis because MR remained standing up. Under cross-examination, and having his memory refreshed with the transcript of his preliminary hearing evidence, he recalled that MR had grabbed his legs and flipped him over, before penetrating him with something.

[25] MH could not remember pushing MR away or telling him to stop.

[26] MH said he freaked out when he was penetrated. He sat up and pulled up his underwear. He remembers raising his voice, but can’t remember what he said. He recalls MR telling him to calm down and that he had just had a nightmare. MH grabbed the robe from the end of the couch and made a run for the door that led outside from the basement. He got out the door and up a number of concrete steps before MR grabbed him and pulled him back inside. MR said, “You can’t go out. It’s not safe out there.”

[27] MR described his demeanour at this point as very scared and weak. MR told him they were going up to the spare bedroom. As they walked upstairs, MH tried to escape again, this time through the front doors. Again, MR grabbed him and kept him from leaving. MH managed to break free and run into the upstairs guest bathroom. He had a bowel movement, then called his sister on his cell phone.

[28] TH is MH’s sister. She testified that she received a panicked call from him at 6:02 a.m. on August 16, 2014. MH was hysterical. He said he did not know where he was or how to get home. He asked for her to please help. The call dropped. She called right back and MH was still talking, as though he had never realized they had been disconnected. He told her the devil was taking over his body. The call dropped again. TH called 911.

[29] MH does not remember much of the conversation he had with his sister. He could not remember telling her that the devil was taking over his body, or a number of other things she testified that he said.

[30] 911 contacted MH on his cell phone at approximately 6:08 a.m. The call was recorded. It demonstrates that MH was in hysterics. Much of what he said is unintelligible. MR got on the phone with the 911 operator. He gave his name, date of birth and address. He told the operator that MH was not injured, that he had gone to bed and suffered a panic attack when he awoke. MH is heard yelling in the background, “I know everything I did; I know everything that happened.” He also yelled, “I don’t want him to fuck me, please” and “I’m really embarrassed because I know what happened”.

[31] MH told the 911 operator that he had never felt like this before and that he was “screwed up”. Under cross-examination, he was unable to explain what he meant by “screwed up”. He knows the feeling was really overwhelming. He told the 911 operator that MR was “giving him drugs” though he conceded under cross-examination that he does not recall MR giving him drugs. He further told the 911 operator, “I swear I didn’t have that much (i.e. to drink)”. He agreed, under cross-examination, that in fact he had had quite a bit to drink.

[32] While MH was still on the phone to 911, a police officer rang the doorbell. The officer escorted MH out to a waiting ambulance and spoke to him there. MH recalls speaking to an officer, but cannot recall anything that was said by either of them, save that he remembered telling the officer about an orange pill bottle.

[33] MH was conveyed by ambulance to a local hospital. He was seen by a nurse specializing in sexual assault and domestic violence. He could not recall how long he spent with her, nor what they discussed.

[34] MH did not recall having any complaints of pain or injury, nor any visible marks consistent with a struggle.

[35] MH did recall that he was told at the hospital that he was very intoxicated. He has no idea how intoxicated, nor is he able to say how he got that way. On his evidence he consumed one beer, one partial beer and three to four shots of rye.

[36] Blood samples were taken from MH at the hospital and sent to the Centre of Forensic Sciences (“CFS”) in Toronto for a toxicological screening. The CFS prepared a report which was filed, on consent, as Exhibit 6. The report indicates that no drugs other than THC were detected in MH’s blood, though the report would not reflect the presence of drugs not tested for. The report also reflects that MH’s blood alcohol content was a little over 100 mg of alcohol in 100 ml of blood.

Biological Evidence

[37] Penile and rectal swabs were taken from MH by the sexual assault nurse at the hospital where the paramedics conveyed him. She forwarded the swabs to the CFS for analysis. The CFS was also provided with known DNA samples from MH and MR.

[38] James Currie is the assistant section head of biology at the CFS, where he has worked for 17 years. I qualified him, on consent, as an expert in biology, able to give opinion evidence in the areas of bodily fluid identification and DNA analysis.

[39] Mr. Currie testified that the swab taken from MH’s rectum did not produce sufficient DNA to be tested. The penile swab, on the other hand, did produce a male DNA sample suitable for comparison.

[40] The penile sample was tested at 15 locations on the DNA strand and compared to MR’s known DNA profile. Mr. Currie said that MR could not be excluded as the donor of the DNA found on the penile swab. Indeed, the chance that the penile swab DNA would match another random person in the population was stated to be 1 in 1.2 quintillion. For all intents and purposes, the DNA on MH’s penis was a match to MR.

[41] Counsel were alive to the significance of the DNA evidence of course and questioned Mr. Currie in a focussed way about DNA transfer. In other words, about the various ways in which MR’s DNA might have found its way onto MH’s penis.

[42] DNA may be transferred from one location to another directly or indirectly. Two simple examples will be illustrative. I may cut myself while cooking dinner and begin to bleed. I may reach for a towel with my bloody hand, leaving a blood stain on the towel. In doing so, I would have directly transferred DNA from my hand to the towel.

[43] On the other hand, I may bleed all over the counter. Later I may take a cloth and wipe up the blood. In this scenario, I would have transferred DNA directly from my hand to the counter, but indirectly to the cloth, which would have picked up the DNA from the counter and not my hand directly.

[44] Mr. Currie testified that the penile swab sample yielded five nanograms of DNA. A nanogram is a billionth of a gram. He described this yield as not a low amount of DNA but not a high amount either. He said it was at the lower end of the spectrum, but not unreasonably low.

[45] To put it into perspective, he said that CFS biologists typically target saliva, blood, semen and sometimes skin cells as sources of DNA. Saliva generally contains 1-10 nanograms of DNA in one microlitre of saliva. A microlitre is a millionth of a litre. Blood generally contains 30-50 nanograms of DNA per microlitre. Semen may contain up to 300 nanograms of DNA per microlitre. Skin cells, on the other hand, may contain less than 1 nanogram of DNA per microlitre.

[46] Based on the yield of five nanograms of DNA from the penile swab, Mr. Currie opined that the source of the DNA was not likely semen. He also thought it was unlikely to be blood, though it could be. He thought it more likely to be saliva or skin cells.

[47] Mr. Currie was unable to say, based on the yield of DNA, whether it was more likely present on MH’s penis as a result of direct, as opposed to indirect, transfer.

[48] He identified a number of factors that tend to increase the possibility of indirect transfer from a source of DNA to an object that comes into contact with it. They include:

(a) Where the source of the transferred DNA is moist bodily fluid;

(b) Where a significant quantity of DNA is present in the source;

(c) Where there is pressure or friction applied between an object and the source; and,

(d) Where there is a sufficiently long period of contact between the object and the source.

[49] Mr. Currie agreed, under cross-examination, that the amount of DNA on the penile swab could be accounted for by a very small volume of saliva. He further agreed that DNA could be transferred from one location to another in a variety of different ways. For instance, if DNA were deposited on a toilet seat, it could be transferred to a second individual coming into contact with the toilet seat. Similarly, skin coming into contact with a housecoat or couch may result in DNA transfer. He agreed that it is possible that if both MR and MH handled a television converter, MR’s DNA could be transferred to MH’s hand. If MH then went to the bathroom and touched his penis with the hand he used to hold the converter, he could further transfer MR’s DNA to his penis.

[50] I will come back to the discussion about DNA momentarily. For now, I will move my focus to a review of evidence led by the defence.

Defence-led Evidence

The Defendant

[51] MR’s evidence was similar in many respects to that of MH, but different in most of the critical areas.

[52] MR testified that he did not know MH well. He said he was not MH’s boss, but agreed he was someone in authority in relation to MH. The first time they really spoke to one another, according to MR, was after MH’s first mishap at work. In addition, they both smoked and would see each other occasionally in the designated smoking area, but didn’t talk much, other than to say hello.

[53] After MH’s third mishap at work, MR came into work to speak to him. He said a number of people wanted him to fire MH, including his partners and MH’s direct supervisors. He denied telling MH that they were going to have to let him go. He agreed that after speaking to him about the third mishap, MH went to the bathroom. When he emerged, it was apparent to MR that MH had been crying. MR thought perhaps maybe he should give MH another chance. But they were going to have to talk about it. He remembers telling MH, “we’re going to have to find out why you keep fucking up at work”. After some discussion about an incident report (the “SMS report”), he sent MH home, with a loose plan to meet later in the day.

[54] MR denies that he told MH to falsify the SMS report. He said MH had filled it out in a way that made no sense. He told MH to redo it.

[55] MR, like MH, testified that they met in the early evening – perhaps around 6:30 – at a Canadian Tire near his home, then MH followed him to his residence only a short distance away. MR’s version of how they came to meet up was somewhat different. He said that MH attended at the airport at about 4:30 p.m. to pick up his paycheque. He told MR that he had to go and run some errands and asked if they could meet later. MR obliged and asked MH to call him when he was ready. By the time MH called, it was between 6:00 and 6:30 and MR was ready to go home. That’s when, and why, he suggested they have their discussion at his house and when and why he told MH to meet him at the Canadian Tire.

[56] Under cross-examination, MR denied that the meeting was ever intended to be secret. He said it was initially supposed to be at the hangar and that whoever was around would join in.

[57] That said, MR testified that it was not unusual for him to have people from work over to his house. They have a family-oriented business. Sometimes he has barbeques for staff. Other times a member of the staff will come over to discuss something he or she wants to address outside of the office. The meeting with MH was not, in MR’s mind, a “business meeting” but a “work-related meeting”.

[58] MR said that when they arrived at his house he gave MH a quick tour around. His home is a detached bungalow with a finished basement. MR is married but his wife was away. He told MH that he was going to cook a steak for dinner and offered him one too. He is not sure what MH’s initial response was, but he eventually said yes. MH asked if he could have a drink. MR told him to help himself. MH went and got them each a beer, then went and did the barbequing.

[59] The meal was consumed in an uneventful fashion. MH finished his beer and MR told him to help himself if he wanted another. The second drink was a rye and coke. MR could not recall who made it. He thinks he did.

[60] After dinner they got down to the business at hand – talking about MH’s work performance. MR could not recall the specific discussion but it was along the lines of questioning MH about why he was having difficulty concentrating at work. MH appeared sad and sorry about his multiple mishaps at work.

[61] MR asked MH if he lived at home. MH said no, that his parents were separated and he did not get along with his stepfather. MH reportedly became more emotional as the discussion went on. MH went and fixed them another drink. They continued talking. MH got even more emotional and began to strongly cry. MH leaned over on the couch and was either hugging or holding MR. MH put his head on MR’s shoulder and just sobbed like a baby.

[62] MH eventually stopped crying and they kept talking. MH continued to make them drinks, which they consumed as the night wore on. They continued to drink rye. MR had a 60 ounce bottle that he opened only that night. He said that he drank about a third of it himself; MH a little more.

[63] At some point between 10:00 and midnight, MH suddenly leaned over and vomited. He got vomit on the floor, the couch, his pants and dribbled some down his shirt as well. MR told MH to get his clothes washed. MH followed him into the laundry room and took off his pants and shirt. MR told him to check his pockets for his cell phone, keys and wallet. As MH was getting undressed, he went to his bathroom and got his robe for MH to put on. The robe was something MR said he wore practically every day, after he had a shower.

[64] They went back to the rec room and continued their conversation. They were no longer talking about business. According to MR the night was basically over. They had no more to drink. They continued to watch television and both of them eventually dozed off. He was not sure how long he slept but thought it was three or four hours.

[65] MR’s next memory is of waking up to MH standing up and having what he described as some sort of seizure. He was unsteady on his feet and appeared to be hyperventilating. He was asking, “where am I? What’s happening to me?” MR jumped up and helped steady MH. He was standing beside a glass coffee table and MR feared he might fall on it and injure himself.

[66] MR asked MH if he was okay. He said MH would calm down for a bit and then act up again. MH said he needed some fresh air. They went outside through the basement exit. MH continued to hyperventilate, then calm down, then hyperventilate again. It seemed to come in waves. Eventually, MH calmed down enough that they went back inside.

[67] MR suggested that they go upstairs and MH could go into the guest room and get some sleep. They got to the guest room and MH lay down. Five seconds later he was back up and the whole thing started over again. MH went into the guest bathroom and was in there for a while. When he came out, he appeared to be texting someone.

[68] MR was unsure how the 911 call happened. MH appeared to calm down as he was talking to the 911 operator. Eventually a police officer showed up and then an ambulance. When the doorbell rang, he answered it. As he was talking to the police officer MH came running down the hall and collapsed on the floor by the front door. He was saying, “Where am I? I don’t know where I am.” He was hyperventilating.

[69] The police officer took MH to the ambulance. He then returned to the house and asked MR where MH’s clothes were. MR took the officer inside and showed him the clothes in the dryer. The officer asked about a pill bottle and MR took him to the rec room and showed him some pill bottles on the coffee table. The officer then left.

[70] MR said he was concerned about MH and texted him the next day several times to see how he was doing. At some point he received a call from the police asking him not to contact MH. He respected that request.

[71] MR testified about the use of the bathrooms during the evening. He said that before MH threw up, they had both used the bathroom in the basement several times; at least three times each. He said MH also used the guest bathroom upstairs once. He believed he had used that same washroom a couple of times that night too. He added that it is his usual practice to spit into the toilet after he urinates; he does not know why he does that.

[72] Under cross-examination by Crown counsel, MR testified that he did not do anything to cause MH’s distress. He did none of the things he is accused of doing.

[73] He denied encouraging MH to drink. He denied asking MH about his parents and making the suggestion that MH’s father must have really hurt him. He denied putting his arm around MH and pulling him close. He denied kissing MH on the forehead. He denied telling MH that he was just like Tommy from maintenance and that he could be MR’s new adopted son. He testified that Tommy had started with them and improved his position through an apprenticeship. He suggested to MH that he could follow in Tommy’s footsteps in that regard.

[74] MR denied that he touched MH while he was lying down. He denied that he ever saw MH naked. He denied that he pulled down MH’s underwear and rubbed his buttocks; he said this is the filthiest thing you could say to a person. He denied that MH tried to run out of the house and further denied that he ran outside and prevented MH from doing so. He said that at some point, MH grabbed his car keys and tried to run for the front door. He stopped him from doing so.

PC Ledwidge

[75] Officer Ledwidge responded to the 911 call. He attended at MR’s residence at about 6:20 a.m. He knocked on the door and MR answered. MH approached the door behind MR. He was crying and sobbing. When he got to the door he flung himself on the floor. PC Ledwidge said it was difficult to understand what was going on with him.

[76] An ambulance arrived. PC Ledwidge walked MH out to it. He attempted to speak to MH in an effort to determine what had happened. MH smelled of alcohol and was clearly under its influence but he was still able to give PC Ledwidge a coherent account of what he said happened. Their conversation was brief. PC Ledwidge did not take a formal statement.

[77] After MH left in the ambulance, PC Ledwidge went into the residence with MR. They went into the basement. He noted that there was a couch and a table. There was a prescription bottle on the table. MR told him that the pills were for his acid reflux. There was a pail on the floor with vomit in it.

[78] MR did not appear to PC Ledwidge to be intoxicated. He had no overwhelming, if any, odour of alcohol emanating from him.

III. FUNDAMENTAL PRINCIPLES

[79] There are certain fundamental principles that must be kept foremost in mind in any criminal trial in Canada. They are as follows.

[80] First, MR is presumed to be innocent of the charges against him, unless and until Crown counsel proves beyond a reasonable doubt that he is guilty of one or more of those charges.

[81] Second, the burden of proof at all times remains on the Crown. Even though MR elected to call evidence at his trial, he has no obligation to prove anything in this case.

[82] Finally, since MR testified, and denied the conduct alleged, the reasonable doubt standard must be applied to the assessment of MR’s credibility. In other words, the assessment of the evidence does not simply involve a determination as to whom, between MH and MR, is the more believable. The court must consider all of the evidence as a whole and in the context of that evidence, proceed with the following analysis:

(a) If the court believes MR’s denial of the alleged conduct, then obviously MR must be acquitted, as the Crown will have failed to establish his guilt beyond a reasonable doubt;

(b) Even if the court does not believe MR’s denial of the alleged conduct, if his evidence, when considered in the context of all of the evidence, raises a reasonable doubt about his guilt, then again he must be acquitted because, again, the Crown will have failed to establish his guilt to the reasonable doubt standard; and,

(c) Finally, even if MR’s evidence does not raise a reasonable doubt about his guilt, MR may only be convicted if the court is satisfied beyond a reasonable doubt, based on all the evidence the court believes and relies upon, that he is guilty of the offences charged.

See R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397

IV. ANALYSIS

[83] It is always important to not lose sight of the forest for the trees. Looking at the evidence on a whole, I sum up the case as follows (and these are uncontroverted facts). A young man – a new employee – screwed up at work. One of the owners of the company – a man with whom he had little prior dealings – invited him to his residence for a meeting to discuss whether the young man would have any future in the company. The work-related meeting lasted throughout the night – some twelve hours. The young man, whom the employer described as “having one foot on a banana peel and the other out the door”, drank excessively at the employer’s home. The young man began to cry at one point and the two men held each other on the couch. Eventually the young man threw up. He put his clothes into the laundry then passed out on the couch. Some time later he woke up in hysterics, accusing the employer of pulling off his underwear while he was unconscious and fondling his genitals. 911 was called and the young man was conveyed to the hospital, still in hysterics, where he underwent an invasive sexual assault examination. Forensic testing revealed that the young man had a blood alcohol content of about 100 mg in 100 ml of blood and 5 nanograms of the employer’s DNA on his penis.

[84] I will come right to the point. I am satisfied, beyond a reasonable doubt, based on the direct and circumstantial evidence tendered by the parties, that MR sexually assaulted MH, essentially in the manner described by MH.

[85] The WD analysis requires that I travel a little deeper into the woods and examine the trees as well as the forest itself. I will do so. I will begin with an analysis of the credibility and reliability of MH and MR. This is an important analysis because I have rejected MR’s evidence in a number of important areas and he is entitled to know why.

The Credibility and Reliability of the Protagonists

[86] Defence counsel urged me to reject the evidence of MH as being both incredible and unreliable. Crown counsel urged me to reject the evidence of MR for the same reasons.

[87] Credibility and reliability are not the same thing of course. Credibility has to do with the truthfulness of the witness. Reliability has to do with the ability of the witness to accurately observe, recall and recount evidence: see R. v. C. (H.), 2009 ONCA 56, at para. 41. A witness who is not credible in his or her evidence about a particular issue cannot give reliable evidence on that issue. On the other hand, an otherwise credible witness may certainly provide unreliable evidence on any given point.

[88] As a general observation, as a trier of fact, I am entitled to believe and rely upon all, some or none of any given witness’ testimony in light of my views of the credibility and reliability of that witness’ evidence.

[89] With MH’s evidence, I have a number of concerns about reliability but no serious concerns about his credibility. With MR’s evidence I have greater concerns about credibility.

Demeanour

[90] MH and MR presented as entirely different witnesses.

[91] I found MR to generally be someone who wanted to be in control when questioned. He quarrelled at times with the Crown and spoke his mind freely and forcefully. MR is someone who is used to being in charge and my impression is that he likes it that way.

[92] MH, by contrast, was meek and mild-mannered. He broke down in tears frequently and came across as emotionally weak. He required frequent breaks during his testimony in order to compose himself.

[93] I appreciate that we are now three years removed from the events in issue. But it is not disputed that MH broke down and cried when confronted by MR at work regarding the mishap involving the aircraft’s nose gear. He also broke down and cried during the work-related meeting at MR’s residence. He was in hysterics during the 911 call and the sex assault nurse testified that he was crying during her examination of him. He further suffered a panic attack while in her care. My strong impression is that he was not significantly tougher emotionally three years ago and was likely as meek then as he presents now.

[94] I generally put little, if any, emphasis on a witness’ demeanour in the witness box. Testifying in a courtroom under the scrutiny of a judge, counsel, court staff, members of the public and, at times, juries, is a strange experience. People react to it in very different ways. Demeanour is, in my view, a generally unreliable and often deceptive basis upon which to assess a witness’ credibility and/or reliability. Having said that, the demeanour displayed by each of the protagonists in the witness box reveals, in my view, important and telling features of their personalities generally.

[95] MR presented as a strong character. He was in a position of authority with respect to MH. There is no question about that, even though MR tried to minimize the power imbalance between them during his testimony. MR suggested that MH would not have had to follow his instructions at work, which of course makes no sense generally and is belied by the fact that MH felt compelled to call MR, and not his immediate supervisor, in the middle of the night to report the damage he caused to an aircraft. MR later attended the worksite and gave MH instructions about filling out an SMS report. And he testified that the determination of whether MH would be fired was in his hands.

[96] MH, by contrast, presented as a weak character. He was afraid – justifiably so – that his job was on the line. He went to MR’s home for what he understood was a business meeting. He was in a strange environment, with an authority figure, fighting for his continued employment. He had driven there and presumably expected to drive home. There was no indication given to him that this was to be a sleep-over meeting.

MR’s Credibility

[97] In my view, there are reasons to be concerned about MR’s credibility in relation to his evidence about what happened in his residence.

[98] MR and MH painted very different pictures of the power dynamic in MR’s residence. According to MR, MH was dictating how much alcohol was consumed and the pace at which they drank it. MH also apparently dictated how long the meeting would go on. MR testified that at one point he was considering calling MH a cab because he wanted to get rid of him. Of course, it was his home. He was the boss. It was his alcohol. He is almost 40 years older than MH. He could have called an end to the meeting and/or the drinking any time that he wanted too. But he didn’t.

[99] In my view, it is highly unlikely, in the prevailing circumstances, that MH would have chosen to consume excessive amounts of alcohol at the home of his boss. MH testified that he didn’t want to drink. But in the end, he did. In fact, he drank so much that he threw up and passed out during a meeting to discuss his future with the company. I find that he drank because MR told him to drink. He was MR’s guest and did as he was instructed to.

[100] In my view, MR’s evidence that MH was essentially driving the bus when it came to their mutual consumption of alcohol makes no sense in the circumstances and I reject it as untruthful.

[101] Equally untruthful is MR’s evidence about how much alcohol he consumed. According to him, he drank at least part of a beer and some 20 ounces of rye between 6:30 and midnight. He and MH were, according to him, matching drink for drink. If that were true, he would have been quite intoxicated when PC Ledwidge arrived at his residence at 6:20 a.m. Certainly MH, who he said drank a similar amount, displayed clear evidence of intoxication. MR did not. He gave no such impression when he spoke to the 911 operator, nor did he appear intoxicated to PC Ledwidge. Indeed, two months later, when interviewed by PC Ellis, he said that he was quite sober by the time the police arrived.

[102] I find that MH was significantly more intoxicated than MR. I find that MR directed MH to drink and to drink substantially more alcohol than MR consumed himself.

[103] To be clear, I am not using what I find to be unbelievable evidence from the mouth of MR as positive evidence of guilt. Independent evidence of fabrication would be required before any rejected testimony could be considered as substantive inculpatory evidence. The Crown did not suggest that there was any such independent evidence of fabrication and I am not going to go down that road on my own volition, without having given defence counsel an opportunity to make submissions on the point. I am, instead, simply rejecting these parts of MR’s evidence.

[104] Crown counsel pointed out some inconsistencies in MR’s evidence – both internal and in comparing his trial testimony to things he has said on other occasions. None of them are particularly significant in my view.

MH’s Credibility

[105] Defence counsel, as I said, urged the court to conclude that MH was not a credible or reliable witness. He submitted that the court should be concerned about the long pauses in MH’s answers to questions posed by counsel; about his hesitation at times; and about the number of breaks MH requested. I am not particularly concerned about those matters. I found MH to be a character of abject sadness. He is clearly depressed and his tears, his pauses and his requested breaks I take as manifestations of that depression, rather than as attempts to be evasive or untruthful.

[106] There were a number of inconsistencies in his evidence, which counsel highlighted as support for the assertion that MH was not generally credible. For instance:

(a) He told PC Ledwidge in the ambulance that he wasn’t penetrated. He agreed under cross-examination that if he said that it was not true;

(b) He told the police the first thing the defendant touched was his “ass”. He said he was lying on his stomach as he awoke and the defendant was rubbing his ass. In his trial testimony, he said that the first thing touched was his penis. He said he doesn’t know why he told the police something different;

(c) He told PC Ledwidge that MR was fully dressed. At trial, he said MR’s zipper was undone and his shirt untucked;

(d) He told the police in a formal statement that he thought MR rolled him over on the couch two times. At trial he said it was only one time. He could not remember saying “two” on an earlier occasion, but agreed that he did;

(e) At the preliminary hearing he testified that he went to the workplace for the meeting when called by MR. He then went to the TD bank and back to the workplace. He testified here that after he went to the TD Bank, he met MR at a local Canadian Tire and he did not go back to the workplace;

(f) In his police statement, he said he grabbed his phone and keys at some point after being assaulted. In his testimony here, he could not remember ever doing so.

[107] There are also parts of the narrative of August 15-16, 2014 that MH does not remember. He does not remember, for instance, anything he said to PC Ledwidge, or anything he said to the sexual assault nurse. And he does not remember anything that happened at MR’s place between the time his clothes went into the laundry and when he awoke to find MR fondling his penis.

[108] There is also little doubt that MH was intoxicated. His level of intoxication appeared to be quite significant. That said, the toxicology report reflected a blood alcohol content of little more than .10. That level does reflect intoxication, but not the sort of intoxication that would typically explain hysterical or irrational behaviour or memory loss. He was also coherent when he spoke to PC Ledwidge, according to the officer’s testimony.

[109] In my view, the inconsistencies in MH’s testimony are minor in nature and, for the most part, explained by the circumstances.

[110] For instance, as PC Ledwidge agreed, he asked MH if he there had been penetration or ejaculation. He agreed that his question, in this context, could easily be understood as meaning penile penetration. MH subsequently revealed to the sex assault nurse that he had been anally penetrated by something other than a penis.

[111] I do not consider the prior statement about MR being “fully dressed” as inconsistent with MH’s trial testimony. According to MH’s testimony here, MR at all times had all of his clothing on, even though at one point his pants were unbuttoned and his shirt untucked.

[112] It is a matter of common ground that MH experienced a traumatic event, though the cause of that event is obviously disputed. The traumatic nature of this incident for him, whatever the cause, more than adequately explains the minor differences in his account: whether his buttocks or penis were touched first; and whether he picked up his phone and keys at any given point in time.

[113] MR and MH gave different accounts of how they came to meet up at Canadian Tire before they went on to MR’s home. I am not in a position to determine exactly how the narrative unfolded. It is not necessary for me to do so. There is no dispute that MH and MR met up at the Canadian Tire and carried on to MR’s house. What happened before that is a non-essential part of the narrative.

[114] I make the same comments about the issue of whether MR told MH to falsify the SMS report. I am unable to say either way. But again, it is a non-essential part of the narrative.

The Alleged Sexual Assault

[115] In the final analysis, I find that I am satisfied beyond a reasonable doubt that MR sexually assaulted MH.

[116] A sexual assault is a non-consensual, intentional application of force, that takes place in circumstances of a sexual nature.

[117] In this instance, the live issue is whether the alleged touching actually took place. There is no dispute that if it did, it was non-consensual. Moreover, it is axiomatic, in my view, that the fondling of a person’s genitals and buttocks constitutes “circumstances of a sexual nature”.

[118] I am satisfied beyond a reasonable doubt that the touching took place for reasons which include the following:

(a) The description of the evening’s events, as between MR and MH, is reasonably similar, save on the important issues of alcohol consumption. In terms of who was directing the drinking and how much was consumed, I have rejected MR’s evidence for the reasons I set out earlier. I accept MH’s evidence that MR directed him to drink and to do so in much greater quantities than MR consumed himself;

(b) The witnesses were also consistent about the fact that MH ended up passed out on the couch wearing just his underwear and a robe;

(c) There is further consistency on the fact that MH awoke in hysterics. While he was drunk, his blood alcohol content was not sufficiently high enough to support a conclusion that he was not capable of distinguishing between a nightmare and the experience of his boss fondling his penis;

(d) MR described MH as having a “seizure”. MR was under no obligation to testify or to explain MH’s documented hysterics. But he chose to offer the “seizure” explanation, which I reject entirely. MR made it clear to me as he testified that he considers himself an intelligent person and a savvy businessman. At 60+ years of age, I am confident that he knew the difference between a seizure and someone who is just extraordinarily upset;

(e) I find that MH had no motive to fabricate his evidence. He advised PC Ledwidge that, as far as he understood, as a result of the get-together at MR’s home, he still had his job;

(f) MH’s post-incident demeanour is entirely consistent with someone who has been sexually assaulted, and not with someone who had a nightmare. He almost immediately called his sister for help. She called 911. His comments during the 911 call are consistent with a sexual assault victim. He moreover agreed to meet with the sexual assault nurse and participate in a penile swab, a rectal swab and a highly personal interview. He remained in a traumatized emotional state during that process. It is well-settled that post-event demeanour or emotional state is admissible as circumstantial evidence that may be used to support a complainant’s evidence of a sexual assault: see R. v. Woollam, 2012 ONSC 2188; and,

(g) While I have some concerns, as expressed, about MR’s credibility, I do not have the same concerns about MH. I found him to be entirely credible and his story fits with the probabilities of the case as a whole. I accept that there are large parts of the narrative that he cannot remember and I attribute those memory issues to the effects of an experience that was deeply traumatizing to him. But the way the evening unfolded; the drinking; the growing intimacy of the conversation; the passing out; the traumatizing event; the 911 call; the meeting with the sex assault nurse; and the determination that MR’s DNA was on MH’s penis, all fit in a strongly consistent way with MH’s entirely credible evidence.

[119] It was pointed out by defence counsel during cross-examination of MH that he could have fought back and that he had no evidence of injuries. I want to comment briefly on these issues. Both play into rape myths. It is simply not the case that either a failure on the part of a sexual assault victim to attempt to fight off his or her assailant and/or an absence of visible injuries make it less likely that an assault occurred. Moreover, on the facts of this particular case, the sexual touching was initiated at a time when MH was not conscious and, consequently, he would not have been in a position to ward off unwanted advances.

[120] I should also comment on the DNA evidence more directly. I have used this evidence only as a piece of circumstantial evidence that is consistent with MH’s version of events.

[121] I accept that it is consistent with other, innocent means of transfer and for that reason I have not used it as the “powerfully corroborative” evidence that the Crown suggested it is.

[122] I think in the circumstances it is significantly more likely that MR’s DNA found its way onto MH’s penis through direct transfer. Indeed, I consider the suggestion of possible indirect transfer to be little more than speculation.

[123] In the usual course, it is not necessary for the Crown to establish any given fact to the reasonable doubt standard. It is usually enough that I be satisfied that the evidence on offer is sufficiently reliable to conclude that a fact in issue is proven. But if I were to conclude that the DNA on MH’s penis was the result of direct transfer, the essential element of an intentional touching would be established on that inference alone. Whether the touching occurred is the central issue in the case and for that reason, it is my view that I must apply the reasonable doubt standard to my consideration of the means by which MR’s DNA came to be on MH’s penis. Given the limited amount of DNA and the evidence of Mr. Currie, I am unable to say that the evidence meets that high standard.

[124] Nevertheless, for the reasons stated, I remain satisfied beyond a reasonable doubt that MR touched MH in a sexual manner, without MH’s consent.

[125] To put it into WD terms, in the context of a consideration of all of the evidence, I reject MR’s evidence that he did not touch MH in a sexual fashion. In the face of what I consider overwhelming evidence that he did touch MR, I conclude that his denials do not raise a reasonable doubt. I am satisfied on my examination of all of the evidence, both direct and circumstantial, that a sexual assault occurred and there will be a finding of guilt on count one.

The Alleged Unlawful Confinement

[126] I turn now to count two: the alleged unlawful confinement.

[127] To unlawfully confine someone means to physically constrain that person against their wishes. It is an unlawful restriction on the other person’s liberty to move from one place to another.

[128] I am not satisfied that the Crown has established this offence to the reasonable doubt standard. I have reached this conclusion for three reasons:

[129] First, by the time this alleged offence occurred, MH was in hysterics about the sexual assault and I am not entirely sure his perception of events was entirely accurate.

[130] Second, MR was in his early sixties, unfit and with a number of health challenges. MH was in his early 20s and fit. I have serious doubts about whether MR would have been capable of physically restraining MH if MH was intent to leaving. I think MH was in a state of shock, frightened and unaware of where exactly he was. He may well have expressed a desire to leave and been persuaded by MR to remain.

[131] Third, there is no evidence that MR ever deprived MH of his cell phone, which MH was readily able to use to summon assistance to leave.

[132] There will be an acquittal on count two.

Boswell J.

Released: October 6, 2017