CITATION: R. v. M.D. 2017 ONSC 6776
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. M.D.
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Farah Rupert, for the Crown
James Foord, for the Accused
HEARD: April 10 – 14, April 17 – 21, August 29 & 30, 2017
REASONS FOR JUDGMENT
1The accused is the manager of a downtown bar. In the early morning hours of February 16, 2015 he engaged in a sex act with a trainee bartender in the upstairs washroom of the bar. Allegedly this was not consensual and as a consequence the accused has been charged with sexual assault contrary to s. 271 of the Criminal Code. [1] The critical question is whether the Crown has proven the absence of consent beyond a reasonable doubt.
2I am finding the accused guilty as charged. Detailed reasons follow. They may be summarized as follows:
a. I find that the complainant was intoxicated to the point that she could not consent.
b. I reject the defence of reasonable belief because the accused made no reasonable efforts to ascertain that the complainant was giving informed and voluntary consent or was capable of consenting.
c. I would also have found that if consent was given, it was vitiated by the fact that the accused was in a position of authority and the complainant was dependent upon him for employment or advancement.
d. In any event, I find that the complainant did not consent and the accused committed sexual assault by touching her for a sexual purpose without that consent.
Factual Background
3Many of the facts are not in dispute. There is a remarkable degree of precision available because communication by text messages and social media has been preserved and because there are time stamped video recordings from the surveillance cameras located in the bar.
4By way of brief synopsis, at the time in question, the complainant was a 19 year old university student who had been hired by the accused and recently started working at the bar. In a text message exchange with the complainant in the early morning of February 8, 2015 after she had worked a shift, the accused asked her if she had any naked photographs of herself on her cell phone and also joked with her that she need not wear underwear to work. She says she was not particularly surprized by this “flirty” behaviour because it is common in the bar business. She says she went along with it because she wanted a job. In the course of the e-mail exchange she advised the accused that she had 20 – 30 naked photographs on her phone and she joked that she never wore underwear.
5On the night in question February 15, 2015 the complainant had been given an opportunity by the accused to be trained as a bar tender during a private function. She very much wanted the opportunity to work behind the bar as that was the position with the most earning potential. She was excited to start her shift and had sent “selfies” to the accused showing alternative outfits she might wear. He selected one but in the course of that exchange he had also sent her a photograph of herself in a bikini which he had retrieved from her Instagram account.
6The complainant arrived at the bar to start training after she had finished working a double shift at the restaurant where she also worked. According to her evidence she had not eaten. Over the course of the evening between 10:30 and 12:30 the complainant consumed approximately ten one ounce shots of tequila or Jack Daniels.
7Some consumption of alcohol by the bar staff was permitted. Apparently they were each allowed to consume or give away up to five shots. In addition to drinks she consumed by herself or with the other bar staff, she had been provided with drinks by the accused. She became intoxicated although she was an experienced drinker. At 11:30 she had texted a friend saying she was “so drunk, so happy”.
8At some point prior to closing, in circumstances that are in dispute, the accused was able to view the naked photographs and a video on the complainant’s phone. At approximately 1:30 in the morning, the accused and the complainant entered an upstairs washroom in a section of the bar that was not open to the public. While in the washroom, the accused performed cunillingus on the complainant and penetrated her vagina.
9This of course is the critical event. The accused describes a consensual encounter initiated by the complainant after she had shown him the photographs. The complainant describes the accused having scrolled through the telephone without her permission and testified she was so drunk that she had to go into the washroom to vomit. It is her evidence the accused followed her into the washroom and engaged in non-consensual sexual activity while she was in a state of extreme intoxication. While their versions of events are quite different, there is no dispute that oral sex and some kind of penetration took place. It is also undisputed that at some point during the encounter, the complainant was so drunk as to be incapable of participating. The accused left the washroom with the complainant’s cell phone and her underwear.
10It is apparent that the complainant was upset by these events. She found another pair of underwear, she gathered her coat, purse and winter boots, retrieved her phone from the accused and she left the bar before the end of her shift. She took a cab to another bar where her boyfriend was working. The complainant arrived there obviously intoxicated and upset. Over the course of the morning she told her boyfriend she had been “raped” by the accused and the boyfriend took her to the hospital to have a rape kit administered.
11She did not immediately contact the police. That occurred some weeks later and it resulted in an investigation leading to the charge now before the court.
The trial
12The matter came on for trial on April 10th, 2017 without a jury. It had been scheduled for five days. At the beginning of the trial there was a delay because the accused brought an application pursuant to s. 276 of the Criminal Code. The issue requiring the 276 application was the introduction of the evidence that the complainant’s cell phone contained naked photographs of herself as well as certain videos depicting sexual activity. I permitted that evidence for a limited purpose. The existence of the photographs and the fact they were viewed by the accused was an important part of the narrative. I need not repeat the ruling here.
13What is important is that the application and the resulting voir dire delayed the trial by three days. This delay was compounded by the fact that counsel for the accused became ill. A secondary result was the need to call witnesses slightly out of order.
14On behalf of the Crown the court heard evidence from the complainant, her former boyfriend and two expert witnesses from the Centre of Forensic Sciences. The Crown also called reply evidence from a detective with the Ottawa Police Service. During an adjournment, the detective had examined a cell phone belonging to the accused.
15It was not necessary to call evidence to prove forensic continuity of DNA or other samples or with respect to the provenance of the photographs or video taken from the surveillance cameras. The origins of that physical evidence were formally admitted as was the accuracy of the time stamps.
16On behalf of the defence, the court heard evidence from the accused himself and from one employee who worked at the night club on the night in question. As noted, there were also a series of admissions. The court was aided by video from the five surveillance cameras located inside the night club which recorded some of the activity on the night in question. The court also had the benefit of photographs taken by the police some time later but showing the layout and configuration of the club. As I mentioned earlier, there were also numerous text messages and other forms of electronic communication preserved on cell phones.
17I do not intend to summarize the evidence of each witness. I will focus on the critical question of consent and how the evidence bears on that question.
The legal test
18It is important to briefly summarize the law and the legal test which the Crown is required to meet. In approaching the evidence, the court must be mindful of the presumption of innocence and the burden which lies upon the Crown. The accused is charged with a specific offence and nothing else.
19In defining the offence of sexual assault, the Code makes use of the general definition of assault which is the intentional application of force without the consent of the complainant. Sexual assault is assault for a sexual purpose and it covers a range of activity from simple unwanted touching to more severe forms of assault including violence and rape.
20To establish guilt, the Crown must prove the specific elements of the offence. This is what the law defines as the actus reus or the actual act which constitutes the offence. In this case it would consist of touching the complainant for a sexual purpose (which is admitted) without her consent (which is not). In this context, the court must be presented with adequate proof that at the moment in question, the complainant did not want the sexual touching to take place. This requires the court to assess the credibility, reliability and quality of the complainant’s evidence in light of all of the other evidence and to consider whether or not this critical element of the offence is proven.
21The question of whether the accused reasonably believed the complainant was consenting shifts the analysis to the point of view of the accused and relates to the mens rea which in this case would be the intention of the accused to carry on with the act despite the lack of consent. The question of reasonable belief is only relevant if lack of consent can be established. [2]
22The law is very clear about consent to sexual activity. Consent must be voluntary and continuous agreement to take part in the activity. Consent cannot be given in advance and consent to one sexual act does not infer consent to another. The person who has consented can change her mind. Silence or non-resistance does not imply consent although consent may be inferred from behaviour and active encouragement and need not be verbal. Apparent consent may be vitiated by a number of factors including extreme intoxication, loss of consciousness or where submission is due to the exercise of authority.[3]
23When considering whether or not the Crown has proven its case the court must be cautious not to fall into common errors. This gives rise to analysis that might appear to many members of the public to be artificial but the court can only convict a person if the evidence supports the necessary findings in accordance with established legal principles, the wording of the Criminal Code and the constitutionally guaranteed presumption of innocence. It is not as simple as saying that if two people are alone in a room the court must decide which one to believe. Treating a criminal case, even a sexual assault case, as a contest of credibility is precisely the error identified by the Supreme Court in R. v. W (D)[4]. Proof beyond a reasonable doubt demands a different analysis.
24The jurisprudence and amendments to the Criminal Code have repudiated gender based stereotypical thinking. At common law and under the Code, previous sexual activity can never be used to infer consent or lack of credibility.[5] The court can and frequently must convict a person based only on the uncorroborated evidence of a complainant. In many instances, the evidence of the complainant will be the only available evidence to support a conviction.[6] The court also has a responsibility to minimize the trauma, embarrassment and invasion of privacy which victims of sexual assault endure when coming to court. Complainants are to be treated fairly. They are entitled to have their evidence heard respectfully and with an open mind.
25What the court cannot do is to abandon the presumption of innocence or reverse the onus of proof. As the courts have remarked on more than one occasion, we cannot replace inappropriate assumptions about the credibility of complainants in sexual assault cases with inappropriate assumptions of guilt.[7] A criminal case remains a contest between the state and the citizen in which the complainant is a witness. In a free and democratic society, the state may not imprison or punish a citizen unless the state can prove the accused has committed the specific offence with which he is charged. Fairness and due process for the accused are central to a criminal trial and he is entitled to all of the protections developed over centuries to ensure that wrongful convictions are avoided and individuals are not lightly deprived of their liberty.
26The formulation of the tests in the jurisprudence may give rise to the impression that assessment of the evidence is a mechanical or formulaic exercise. That is not so. It is the function of the trier of fact to determine the truth based on the totality of the evidence and it is a multifaceted and nuanced exercise.
Analysis
27I consider the behaviour of the accused to be predatory. He engaged in the worst kind of sexism, asking a female employee about nude photographs on her telephone, suggesting she need not wear underwear, sending her a bikini picture he had pulled from her Instagram account, asking to see her photographs and making other sexualized suggestions. During the night in question while he was supervising the bar, and in circumstances where he recognized a duty to protect the safety and security of female employees, the accused allowed the complainant to become significantly impaired. He engaged in clandestine sexual activity with her in the workplace during working hours. He took her underwear and left her alone on the floor of the bathroom. Even had the complainant been a willing and enthusiastic participant and initiated the sexual activity, the accused was the most senior employee and the person in charge of the workplace. He should not have been in the washroom having a sexual encounter with the complainant. Of this there is no doubt but that by itself does not make it criminal.
28Parliament has not chosen to criminalize the mere act of sex between a supervisor and an employee in the workplace. But Parliament has provided that consent is not valid under certain circumstances. One of these is if consent was induced by abuse of a position of authority and another is if the complainant was unable to consent at the pertinent point in time. [8] While “unable to consent” is not defined, it would obviously include unconsciousness and it will include a level of intoxication that renders voluntary and informed consent impossible. As the Supreme Court has defined it, consent requires a “reasonably informed choice” and that will not be possible if the mental state of the complainant rendered her “incapable of understanding the sexual act or of realizing that she was free to decline to participate.”[9]
29The complainant was very impaired. She was so impaired that the accused concedes she “hit a wall” during the encounter and was at that point too drunk to consent. It is his evidence that he stopped at that point and went downstairs to get the complainant some water. I find that evidence of split second timing very difficult to believe but even if it is accurate, it is obvious that the complainant would have reached that level of impairment before the accused noticed it. In his own evidence, his only method of assessing continued consent was that she appeared to be “in to it” and as he was performing cunnilingus at the time, he only noticed the change in her level of participation when in his words she stopped “moaning”. If the complainant lacked the capacity to consent due to her state of inebriation before it became obvious to the accused, in the circumstances of this case, he cannot rely upon the defence of reasonable belief.
30S. 273.2 (b) of the Criminal Code requires that a person relying on belief that the complainant was consenting must have taken reasonable steps in the circumstances known to the accused at the time to ascertain that the person was actually consenting. “Reasonable” for a person in the position of the accused would have included knowledge of the level of intoxication of the complainant, consideration of the power imbalance between employer and employee, consideration of the circumstances and the location and other factors in order to be satisfied that the complainant was actually capable of giving consent and was voluntarily and freely doing so.
31In this case the accused confirmed that he knew it was illegal to have sex with a woman who was too drunk to consent. He also confirmed that he was very experienced and indeed trained to identify severe intoxication. As expressed in text messages and in the evidence of one of the witnesses, the bar recognized a responsibility for the safety and security of its female staff. The accused made no effort whatsoever to ascertain that the complainant was sufficiently sober to consent.
32I am conscious of the fact that reasonable belief is a defence. It only becomes relevant if the Crown has proven lack of consent in the first place. As mentioned previously, consent will be absent if the capacity to consent was lacking at the pertinent time. Besides the accused’s own observation that during the act, the complainant stopped responding and had “hit a wall”, her lack of capacity at the critical moment can be assessed from her own evidence and from the scientific evidence.
33The complainant’s evidence is that she had gone upstairs to get some candy from the coat check and at that point was feeling very inebriated. She says she tripped on the stairs. After visiting the coat check, she noticed the accused near the upstairs bar scrolling through the photographs on her phone. She testified that she tried to get the phone back but suddenly felt very sick and had to vomit. She testified that the accused followed her into the washroom and started performing oral sex on her without her permission. At that point she recalls being confused, unable to resist, blacking out and feeling unable to move. She described herself as feeling “like a potato”.
34Less than half an hour previously she was walking on high heels, serving customers, interacting with bar staff and asked the accused if she could go upstairs to get candy from the coat check. Shortly after the event, she completed various autonomous tasks. She changed into fresh underwear, retrieved her coat and purse and her winter boots, went and asked the accused for her phone, hailed a cab contracted with the cab driver and took the cab to another bar. Obviously at 1:00 in the morning and by sometime around 2:00 she was able to walk, talk, interact with others and make decisions. Serving customers, asking permission, retrieving a phone and hailing a cab are not consistent with lack of capacity to consent. This means that any period of incapacity while she was upstairs in the washroom was transitory.
35The accused testified. His version of events is very different from the complainant’s. His evidence is that while working downstairs he had asked the complainant when he was going to see the naked photographs. He testified that the complainant showed him some photographs and then they went upstairs where it was more private. Then he says she showed him more photographs and a video before leading him by the hand into the washroom.
36The accused described in elaborate detail how matters unfolded and why he believed the complainant was inviting him to touch her. He told the court that they ultimately wound up with him sitting on the closed toilet with her straddling his lap. According to him she then kissed him, pulled down her shirt to expose her breasts, told him he was going to see what he saw on the video and then put one leg up on the toilet so that he could move and remove her underwear. He describes briefly penetrating her vagina with his finger and then engaging in cunnilingus. All of this he believed was consensual. Then he said she stopped responding to him and he could see from her expression and glazed eyes that she was too drunk. He said it was like she had “hit a wall” and he went downstairs to get her some water.
37Alcohol and intoxication always complicate sexual assault cases. The first reason for this is the significant distance between intoxication, even severe intoxication, and loss of the ability to consent. The second is a question of memory and accurate perception. In R. v. Tariq the court wrestled with this issue in dealing with a complainant who had been too intoxicated to remember what occurred.[10] As the review of the jurisprudence in that case demonstrated, the law does not criminalize merely unethical behaviour. It is not enough that a complainant is so intoxicated as to reduce inhibitions and impair judgment, that the complainant would not have consented if sober, that the complainant later regrets consenting or that the complainant suffers memory loss as a result of intoxication. As the law stands, mere intoxication, even severe intoxication, is not enough to prove lack of consent. On the other hand there is a level of intoxication short of unconsciousness which will suffice. In R. v. L.G.[11], the Court of Appeal upheld a finding that a complainant who was experiencing real difficulty thinking and moving, was drowsy, felt like she was watching herself in a movie and was unable to concentrate or get up off the floor, was incapable of consenting. Although that case also involved a date rape drug, this is much the way in which the complainant described her condition during the sexual encounter with the accused.
38There was a blood sample taken from the complainant at 8:00 a.m. when she attended at the hospital for a rape kit. The toxicologist who testified at the trial cannot establish with scientific accuracy exactly how much alcohol the complainant would have ingested or how impaired she was at 1:30 in the morning but the evidence is of assistance and it is consistent with the evidence of the complainant.
39When the blood sample was taken, the complainant still had a significant blood alcohol level of 74 milligrams in 100 millilitres. Making assumptions that no alcohol had been consumed after 1:15 and what the expert called conservative assumptions about the elimination rate of alcohol the expert projected that at 1:30 a.m. the complainant could have had a blood alcohol level of between 120 and 206 mg / 100 ml. She indicated that the higher value was more probable.
40The expert testified that a moderate drinker might experience difficulty with walking and balance and impaired decision making at BAC approaching 150 and at 200 would be disoriented, have gross difficulty with balance, fine motor control and speech. At over 200 they would typically experience decreased consciousness, nausea, vomiting and other significant signs of excessive alcohol consumption.
41It is true that the complainant was not a moderate drinker. Her evidence was that she routinely had eight drinks on a night out at least three nights per week. Her ex-boyfriend testified that she went out a number of times per week and he estimated that her regular alcohol consumption was “more like ten to twelve” drinks in an evening.
42The expert was able to make useful distinctions between intoxication and impairment and to describe the ways in which memory loss can occur with alcohol consumption. She testified that while experienced drinkers can successfully mask symptoms of intoxication, impairment of autonomous and central nervous system functions will still affect them. The symptoms of nausea, blackout and decreased consciousness described by the complainant suggest she had a very significant blood alcohol level of more than 200 mg / 100 ml. The toxicologist testified that would be consistent with ingesting 10 drinks in the course of the evening.
43This distinction between visible intoxication and mental impairment is useful and is entirely consistent with the video evidence. In the time leading up to the complainant leaving the main bar, the complainant is walking and even running in high heels, laughing, talking and apparently serving drinks. There is also clear evidence of reduced inhibition and impaired decision making. For example she opens her skirt to show a hip piercing to the staff behind the bar. She at various times is intimate with the accused by holding hands, dancing and putting her arms around his neck. Towards the end of the evening the accused can be seen touching her buttocks, lower back and thighs and she can be seen permitting the accused and other bar staff to touch her in that way. All of this is in public view behind the bar. While the witness called by the accused described her as “buzzed” but not “wrecked” and as happy, flirty and drunk but no different than “typical female bar staff”, in his words, there is no doubt that she was significantly affected by alcohol yet still functioning. It is not unreasonable to think that a less experienced drinker might have been incapacitated after 10 drinks. But there is no way the accused could not have been aware of her advanced state of intoxication.
44Under the W (D) analysis, the first question is whether I accept the evidence of the accused completely or whether it is sufficiently plausible in the context of all of the evidence that I am left with reasonable doubt. His evidence is that she initiated the sexual activity by leading him into the washroom while apparently still sufficiently sober to consent and she only “hit the wall” after sexual activity had begun.
45I do not find this evidence persuasive or plausible. In the first place he denied seeing the complainant vomit but he did describe her as spitting into the toilet. It is hard to imagine spitting into the toilet as a prelude to a sexual encounter and his clear need to downplay the event by describing it as “spitting” did not have a ring of truth.
46Similarly he had no convincing explanation of why he took the complainant’s underwear. He was evasive on that point and the suggestion made by the Crown that he took the underwear as a trophy seems the most likely explanation. He had no good answer for why he could not have taken the complainant into his office which was right next to the washroom if this was consensual sexual activity. Finally his evidence that she was initially not too intoxicated to consent but then suddenly “hit a wall” and became too intoxicated is not credible and is too dependent on split second assessment as she succumbed to the effects of alcohol to have any air of reality.
47While credibility of evidence cannot be assessed purely be demeanour, observation of the accused and the manner in which he testified is a useful tool. I found the evidence of the accused to be delivered in a manner that was bordering on glib. He was clearly an intelligent and sophisticated witness who admitted that many of his activities were immoral, wrong and perhaps even illegal but he did so with no real conviction. I formed the impression that many of his answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure. His vagueness about the number of drinks he knew the complainant had drunk, the precise timing of her blackout and his inability to describe what happened to the complainant after he left her alone in the bathroom left me entirely unconvinced.
48I am not ignoring the text message sent by the accused to the boyfriend denying the allegation that he had tried to force himself on the complainant. That statement is admissible and the evidence drawn from the forensic examination of the accused’s telephone does not support the suggestion by the Crown that it may have been fabricated. Although the denial is admissible, however, it is not probative one way or the other.
49The witness the accused called in support of his defence was unconvincing. In the first place his evidence that when the complainant was behind the bar she was happy and drunk and very flirty but no more than any “typical female bar staff” proves very little. The only critical point he gave evidence about was that he saw the accused and the complainant go up the stairs together. That is consistent with the accused’s evidence and inconsistent with that of the complainant. But the witness was evasive on a number of points. In particular he seemed strangely reluctant to confirm that he was in a reporting relationship with the accused. He was also adamant that despite working together since the incident and his awareness of the charges levelled against the accused, the two of them had never discussed the incident in any way. A complete denial that they had ever discussed the matter is so improbable as to defy belief. I did not find him credible.
50It was the complainant’s evidence that she was in a state of confusion, blacking out and unable to move from the moment she began to vomit into the toilet and the accused followed her into the washroom. I accept that evidence. I do not accept that she only lost the capacity to consent part way through the sex act as described by the accused.
51This does not necessarily mean that I accept the complainant’s recollection of the mechanics of the assault. In fact I would have grave reservations about a finding that the accused inserted his penis into the complainant’s vagina for example. The complainant’s recollection and perception were impaired by her level of intoxication and the DNA evidence is at best ambiguous on this point. There is however no doubt that the accused performed oral sex on the complainant and at least momentarily he digitally penetrated her. He admits as much and though there was insufficient DNA found in the vaginal swab to identify the donor, there was male DNA in trace amounts from a person other than the complainant’s boyfriend. The DNA found in her underwear on the other hand is a match for the accused and the amylase traces are consistent with saliva.
52Under the circumstances I find that the Crown has proven the complainant was sufficiently impaired by alcohol that she was incapable of consent. For the reasons outlined above, the accused cannot rely on reasonable belief because he exercised no due diligence whatsoever.
53I am also of the view that consent would have been vitiated by the exercise of authority. The Crown advised that she was not relying upon s. 273.1 (2) (c) because there was no evidence that inside the bathroom the complainant consented because of the use of authority. It was the complainant’s evidence that she did not consent at all and as I will come to I accept her evidence. The point is that if the accused’s version of events was accepted, there would be reason to find that the apparent consent was by reason of authority.
54S, 273.1 (2) (c) of the Code does not use the word coercion only that the consent is “induced” by “abuse of authority”. There is also s. 265 (3) which states that no consent is obtained to assault if the complainant “submits” by reason of the “exercise of authority”. Parliament has determined that submission by reason of authority is not consent. A clear example of authority induced compliance was evident in the text message exchange. When the accused asked about the nude pictures and underwear while holding out the implicit possibility of a bar tending shift the complainant volunteered intimate information and did not reject his suggestions. Her testimony that she went along with this only because she wanted the job has the ring of truth and there can be no doubt the accused knew he was in a position to grant or withhold assigning the complainant a shift as a bar tender at that time. The possibility of favour was clearly implicit in the text messages.
55On the night in question the complainant knew she was only being tried out on the bar. The possibility of further employment as a bar tender was completely dependent on the accused. Consent to sexual activity obtained under an implicit promise of employment or advancement is improper use of a position of authority.
56Obviously, in light of the concession by the Crown, and on my evidentiary findings, it would be unfair to convict on this ground. It is unnecessary to do so because I find that capacity to consent was absent and I do not accept the accused’s version of events. I would observe however that the manipulation of a staff member through the combination of authority and intoxication is a dangerous and toxic mix.
57My conclusion concerning the lack of capacity is sufficient to support a conviction. I am left with no reasonable doubt that the level of intoxication and confusion suffered by the complainant made consent impossible.
58Even if I had not been persuaded on lack of capacity however, I would also reach the conclusion that consent was not given. Referring again to the W (D) framework, even if I reject the evidence of the accused who has no obligation to prove anything, I must be satisfied on the totality of the evidence that the Crown has proven the lack of consent.
59It is not simply a question of whether the complainant is believable although of course as the chief witness for the Crown that is important. A witness may be sincere and yet their evidence may be insufficient to persuade the court that the facts recounted by the witness are accurate. A reasonable doubt may also arise from absence of evidence or simply from the failure of the evidence to persuade the trier of fact to the requisite level of proof beyond a reasonable doubt.[12] Finally, while corroboration has been abolished as a necessary element in sexual assault cases, corroborating evidence or the lack of corroborating evidence may nevertheless play a role.[13]
60As Justice Molloy explained in R. v. Nyznik, “it is possible to make a finding of sexual assault based solely on the uncorroborated evidence of one witness, usually the complainant” but “where there are frailties in the complainant’s evidence … it is useful to look for corroboration”[14]. This she held would be necessary if the complainant’s evidence was too “fraught with problems to stand alone”.
61Counsel for the accused has focused on a number of concerns, inconsistencies and gaps in the evidence which he argues should be cause for concern. He suggests that these are frailties rendering it too dangerous to convict the accused on the strength of the complainant’s evidence.
62One of those issues is the question of how the complainant’s phone got upstairs and into the possession of the accused. It was the complainant’s evidence that the accused had asked her to borrow the phone while they were behind the main bar and then when she went upstairs the accused was scrolling through the pictures. His evidence by contrast was that he had asked to see the naked photographs, that she had shown him some photographs at the back bar and he had suggested they go upstairs where it was more private. Then he says she showed him more photographs and the videos. He believes he was holding the phone and put it in his pocket when the complainant led him into the bathroom to initiate sexual activity.
63In cross examination, the complainant admitted that nowhere on the surveillance video is there any evidence consistent with her evidence that she gave the accused her phone. For that matter there is nowhere on the video that the accused can be seen taking the phone. Arguably the video does not support her evidence on this point. On the other hand not everything that took place in the bar was captured by video. The complainant is last seen on video at 1:03 a.m. and the recording of events behind the bar ceases at 1:11 a.m.
64This absence of video after that point in the morning means the court is deprived of what might have been a critical aid to assessing credibility. One of the reasons the mystery of the phone cannot be answered is that there is no video after 1:11 a.m. I have no reason to think there is anything nefarious about this. The video surveillance was originally in the possession of the bar and was retrieved by the police with the co-operation of the owner. I do not know why there was no video evidence from 1:11 until the bar closed down. This means that no answer can be found in the video evidence. It does not appear the complainant had the phone with her when she left the bar at 1:03 a.m. and so there is no objective evidence to show whether she or the accused took the phone upstairs.
65In her evidence at trial, the complainant stated that she had asked for permission to leave the bar on two occasions, once to go to the washroom and the second time to get candy. It is simply unclear whether video footage between 1:11 and 1:30 would have shed any light on this. Similarly when the video from the back bar cuts off, her winter boots were still there. There is no video of her when she retrieved her boots and changed out of her high heels just before leaving. The gap in the video evidence is concerning.
66The complainant testified that she went upstairs to get candy and denied that she and the accused went up together. She said that she tripped on the stairs because she was drunk and this was witnessed by the coat check girl. That witness was not called.
67The complainant testified that after going to the coat check she saw the accused speaking with an unknown man upstairs near the top bar. No other witness saw anyone else present and no witness was called who saw the complainant go upstairs alone. The only other staff member that was called was the witness called by the accused. He testified that he saw the accused and the complainant go up the stairs together and saw them standing together near the top bar but he could not see what they were doing. I have indicated my impression of this witness. Still his evidence on this point is inconsistent with the evidence of the complainant.
68The complainant testified that she was bruised and scratched during the encounter. No one else including her boyfriend saw any such scratches or bruises. There was no independent evidence that bruises or scratches were reported at the hospital or treated medically.
69When cross examined, the complainant seemed strangely reluctant to concede that she is frequently seen on the video reflexively pulling down the hem of her skirt. In fact there are about 30 times on the video that she had to adjust the skirt because it was riding up.
70There are also some inconsistencies between the testimony of the complainant and that of her ex-boyfriend. In particular while he testified that she was having a panic attack when she came to the bar and he had often seen her have panic attacks before, she denied any such history. He testified that she had missed school because of anxiety. She denied this. This creates the impression that the complainant wished to downplay any suggestion of previous mental health issues and counsel suggests it should be reason to doubt her candour.
71Similarly the complainant did not agree that her boyfriend had been angry with her. This is contrary to his evidence that he was yelling at her in the car on the way home and continued to be very upset with her once they got there. It was the ex-boyfriend’s evidence that he had to insist that they go to the hospital. It was the theory of the defence that the complainant only used the word “rape” when it was suggested to her by her boyfriend but she denied this.
72The complainant was somewhat vague concerning how soon after the event she went back out to the bars. She had at one point indicated that it was months after the night in question but she was shown evidence demonstrating that did not seem to be accurate. Her visit to the hospital where she ultimately disclosed the assault to the police was on March 13th but she admitted she was out in the bars with friends by St. Patrick’s day at the latest. Counsel for the accused argues that this is one of several reasons to treat her evidence with caution.
73There is also the fact that the complainant was knowingly breaching conditions of bail when she was with her boyfriend. She admitted this. Apparently as a result of a domestic argument some weeks before the events in question she had been ordered not to associate with the boyfriend. It was suggested this demonstrated a lack of respect for the law and that should be considered when assessing credibility.
74None of these anomalies in the evidence lead to the conclusion that the complainant is being untruthful. As a witness she appeared quiet and careful. Though she became upset at certain points, I did not find her to be evasive. She was unshaken in her evidence that she did not initiate sexual activity and did not want to have sex with the accused. When it comes to the precision of her evidence or whether her recollection matches exactly with that of her ex-boyfiend, some allowance must be made for her level of intoxication, the passage of time, the impact of trauma and the absence of any opportunity to collude.
75She has been unwavering in her evidence on the core question that she did not seek the sexual encounter or consent to oral sex or penetration. As noted above, there may be some doubt about precisely how the accused penetrated her vagina and it has not been proven that she suffered any injuries. There is no doubt there was an unwanted sexual act which is the essential element of the offence. I accept the evidence of the complainant that she did not initiate sexual contact and did not consent.
Conclusion
76In conclusion, I find that the Crown has proven the elements of the offence beyond a reasonable doubt. For the reasons outlined above, I conclude that the complainant did not consent to the sexual encounter, that she was too intoxicated to have consented in any event and I reject the defence of reasonable belief.
77I wish to thank counsel for their helpful submissions throughout the trial and for their efforts directed at trial efficiency. I will provide a written copy of my reasons and set a date for sentencing.
Mr. Justice C. MacLeod
Date: November 16th, 2017
CITATION: R. v. M.D., 2017 ONSC 6776
COURT FILE NO.: 15-5062
DATE: 2017/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN
AND
M.D., Accused
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Farah Rupert, for the Crown
James Foord, for the Accused
reasons for judgment
Mr. Justice Calum MacLeod
Released: November 16, 2017
1NOTE: Pseudonyms and non-identifying descriptors are used throughout these reasons. It is an offence for any person to publish any information that might lead to disclosure of the identity of the complainant pursuant to an order made under s. 486.4 of the Criminal Code.
2R. v. Pappajohn, 1980 13 (SCC), [1980] 2 SCR 120; R. v. Ewanchuk , 1999 711 (SCC), [1999] 1 SCR 330
3S. 265 (3) and s. 273.1 (2) of the Criminal Code
4[1991] SCR 742
5Ruling on s. 276 application and ss. 276 – 277 of the Criminal Code
6S. 274 & 275, Criminal Code
7See for example R. v. Stewart, (1994) 1994 7208 (ON CA), 18 OR (3d) 509 (CA)
9R. v. Ewanchuk,
102016 ONSC 614
12See R. v. Staniforth, (1979) 1979 4477 (ON CA), 11 C.R. (3d) 84 (Ont. CA) @ para. 39
13See R. v. A.N. 2017 ONCA 647 @ para. 19