R. v. R.P., 2017 ONSC 7034

COURT FILE NO.: CR16-0020

DATE: 20171213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.P.

Ms. S. Haner, for the Crown

Ms. M. Bojanowska, for the accused

HEARD at Gore Bay: October 10, 11, 12, 23, and 24, 2017

Reasons for Judgment

A.D. kurkE j.

Overview

[1] The accused was tried on a single-count indictment alleging the sexual assault of D.D. on or about August 1, 2015 on Manitoulin Island.

[2] The main evidence on the trial was offered by the complainant D.D., who testified over the course of two and a half days, although her evidence in chief was mostly completed on the first day of the trial. The issue at this trial is whether the Crown has met its burden of proving the case beyond a reasonable doubt.

[3] The narrative of the case comes from the evidence of the complainant. This evidence describes two sexual assaults late at night on August 1, 2015: one a breast groping as the complainant and the accused walked back with wood from a woodpile for a bonfire, and the other forced penetration and intercourse in the trailer where the complainant was lying down to sleep. The defence submits that the groping did not occur and that the complainant, for financial reasons, crafted an implausible rape story from a consensual encounter, and that her account is too incredible and unreliable to satisfy the Crown’s burden beyond a reasonable doubt.

Facts

[4] The complainant D.D. was born […], 1995. She was 19 years old on August 1, 2015. After graduating high school in June 2013, the complainant took a job at Tim Horton’s in Espanola, but wanted to be a police officer. As a step in that direction, she trained with C[…] (“C[…]”) in Little Current and in Wikwemikong, on Manitoulin Island. She had a week of classes in July 2015, with the accused as her instructor. During her training, she had dined once and gone to the gym with the company owner and the accused, at the accused’s invitation. After she passed her licensing exam, the complainant was offered a job with C[…].

[5] The complainant stayed in contact with the accused, and saw him as her supervisor. The complainant described her relationship with the accused as “purely work”, and the history of text messages between the two (Exhibit 6) confirms that assessment, but also shows that the two were familiar enough to liberally sprinkle their messages with expletives. The complainant had shared with the accused shortly after they met personal details about difficulties that she was having with her ex-boyfriend. The accused was present at the complainant’s first assignment after she was hired, a dance party at the Country Fest grounds, also called the “Flat Rock”, on Harbour View Road in Little Current.

[6] The complainant also worked by-law enforcement in Little Current for two or three weeks for C[…]. She was then assigned to Haweater weekend in Little Current, again to be based at the Flat Rock, patrolling the boardwalk downtown. There was to be a gathering of C[…] personnel and barbecue dinner the night before the event, starting on July 31, 2015, and the complainant was to work at the festival the next day.

[7] On July 31, 2015, the complainant spent most of the day with her grandmother in Espanola before packing things up for work, including a change of clothes and her work clothes, as she would be sleeping over. She also had a pillow and a blanket in her car. The complainant communicated with the accused about her plans for travelling to Little Current. It took her about an hour to reach Little Current, where she stopped at the Beer Store and picked up “tall boys” of Molson Canadian, which the accused had asked for.

[8] The complainant arrived at the Flat Rock and found two trailers on site. She spoke with “KT” and her husband Craig Timmerman, the owners of the property, when they arrived. After them, C[…] staff arrived together, including four C[…] security guards and the accused and his 7- or 8-year-old son. The only person there whom the complainant had met before was the accused.

[9] The group spoke about sleeping arrangements. The complainant was to sleep in one trailer with two staff members who were a couple, with the rest in the other trailer. At one point, the complainant and the accused went to check out some people with their own trailer who were by the amphitheatre on site. They spent some time speaking with this couple, and the complainant observed one of the two butt out a marijuana cigarette. At some point in the evening, the complainant and the accused also went in the complainant’s vehicle to get gas for the generator that was set up and running between and close to the security trailers, which were situated end-to-end.

[10] The accused and other people began drinking before dinner. The complainant opened one of the beers that she had brought, and sipped at it during the evening, mostly during and after dinner, although she did not exactly recall when she opened it. She testified that on that evening, in total, she had one tallboy and perhaps a sip from another.

[11] After the group had eaten, it was fully dark out, and a bonfire was built. The accused mentioned that they had to get some wood, and the complainant knew where there was a woodpile. The accused went with the complainant to get wood. The accused brought along a beer that he was working on, and had another full can in his pocket. The complainant used her cellphone as a flashlight. The woodpile was not far from the campsite, about five minutes. As they walked, the complainant and the accused talked about various things, including the complainant’s ex-boyfriend.

[12] By this point, the complainant had drunk about half of her beer, and had left the rest at the campsite. She felt mildly dizzy, but experienced no other effects. At the time, she weighed about 115 pounds, and was not a big drinker. The accused, however, seemed a little more talkative than usual, was slurring his words, and seemed a little “unbalanced”. On the complainant’s estimate, he weighed 210 pounds, and was taller than her five feet seven inches.

[13] At the woodpile, each took an armful of wood, and they started back. At one point, the accused gave the complainant his open beer, from which she may or may not have drunk the sip that remained, and he opened his other can. He lit a cigarette. By a stage near the amphitheatre, the accused asked the complainant to slow down, and got her to stop by tugging on her hoodie. He told the complainant to look at the moon. He had her turn off her cellphone light. The accused spoke of the beauty of the moon. He told the complainant that she should admire life once in a while, that he would not be around as long as the moon. He told the complainant that she needed to figure things out with her ex, grow up, and move on.

[14] With these formalities out of the way, the accused reached his hand around onto the complainant’s stomach, and up inside her shirt, and ultimately touched her left breast two or three times. The complainant kept moving his arm away. She told him to stop, and said that at 19 she was too young. The complainant was uncomfortable at the thought of a relationship with the accused. He was more than ten years older than she was, he was her boss, and he had a child. She was young, with her whole life ahead of her. They were at different stages of life. The accused acknowledged to the complainant that she was young, but told her that it was maturity, not age, that was important.

[15] The complainant moved away from the accused, and said “let’s go back to the fire”. She picked up the wood and the beer can that she had set down, turned her cellphone flashlight on, and walked briskly back to the campsite. The two had no further physical contact at that point. The complainant was surprised, disgusted and upset. She was nervous about what she was going to do regarding work; the accused was her boss, and she did not want to work for him “if that was his intentions”.

[16] Back at the campfire, the complainant sat for a minute and finished her beer. She still laughed at the accused’s jokes, but through the smiles and laughter, she felt she was exhibiting a stern visage.

[17] The complainant at points prior to going to the trailer to sleep wanted to leave, but she had already been drinking. Her G2 licence permitted no alcohol consumption before driving; she wanted to be a police officer and did not want to break the law. The effects of the alcohol made her feel that she could not drive. She could not easily leave: Her parents were camping, and she did not think that they could be reached to pick her up. Her grandmother lived an hour away, and might not be up. Of her two sisters, one lived too far away and had children to care for, and the other had no license. The complainant had no money for a taxi. It was, by the complainant’s calculation, a 30-minute walk into town, late at night, along a badly lit road. She was worried about overreacting, and so did not ask any of the people she was with to drive her.

[18] The complainant went to her van, saying that she had to charge her phone. The complainant texted her counsellor, Gerlinde Goodwin (“Gerlinde” or “Goodwin”). In her message (Exhibit 1), she wrote that she wanted this “to come out fresh in my mind, so I’m going to send you everything he said”. In this message to Goodwin, the complainant included what she considered to be an accurate account, although it plainly was not as detailed or descriptive as her statement to police or her testimony at preliminary inquiry or at this trial. She concluded her message with “I said no and no means no I’m intoxicated and can’t legally consent.” The message was sent at 12:39 a.m. In her evidence, the complainant explained that her concern was about unwanted touching, like that she had just experienced.

[19] In a companion “video” for herself that appears just to be a voice recording, the complainant explains that she is camping out at the Country Fest grounds with her boss, who is “trying to have sex with” her. She wanted to make a tape for use as evidence in case anything happened. She has nowhere else to stay. She has been drinking and can’t drive. She does not want to call police because it is her boss, “and I work for him”. She is 19, and “he is over 45 I believe”. “I’ve already said no and it is a firm no and that is not going to change so if he says it is a yes it is not a yes” (Exhibit 2a transcription). The complainant explained in her evidence that she had a feeling about the accused’s motives, and wanted to head off any defence of “consent”.

[20] The complainant wanted to get hold of Goodwin by phone, but when she could not reach her, left a voice message for her (Exhibit 3a transcription). She testified that she wanted to find someone who could pick her up without making a scene. Her message explained her predicament, and that she could not drive. She asked for Goodwin to call her back “tomorrow”, presumably later that morning, and gave a number. She told Goodwin that she would try to sleep in the van or somewhere else, but that she could not drive because she had been drinking.

[21] After 20 minutes in her van, the complainant returned to the campfire. Everyone from earlier was there, except the accused’s son, who had gone to bed. The complainant went with another security guard, not the accused, to get more wood. When they returned, the complainant sat back down at the fire for five minutes, checked her phone, and noticed that it was 1:50 a.m. She announced that she was going to bed. The accused had for some time been talking on his phone by the stage.

[22] The complainant went to her van, and thought about sleeping in it, but realized that it would be uncomfortable, and that she had to work the next day. Accordingly, she decided against the van, and went to the sofa in her assigned trailer. A couple had already gone into the bedroom of the same trailer, which was separated from the rest only by a curtain. She turned off a flashlight that was lying alight in the crack of the fold-down table, and put it on a shelf at the head of the sofa. She tried to lock the trailer door, but could not manage the mechanism. The complainant felt that she may have been overreacting.

[23] The complainant lay down on the sofa, in her clothes, using her own pillow and blanket, and a blanket that was already on the sofa. She had her phone in her hand. The generator was going and the wind was blowing loudly at the window by the couch, and the complainant could sleep only fitfully. But she could hear someone outside, and people murmuring at the fire.

[24] The accused came in and then left the trailer more than once. The first time, he asked the complainant if she was awake. The complainant feigned being asleep, because she did not want to talk with the accused given what had happened earlier. The accused shook the complainant to wake her. She asked him if he needed something, and the accused asked her if the generator was too loud. Although the complainant denied that it was a problem, the accused left to get it turned off. He returned and told her that the generator was powering the fridge and could not be turned off. The complainant said it was not a big deal. The accused went outside again.

[25] The complainant was becoming increasingly fearful and wanted to capture any conversation from the accused, including her voice telling the accused to leave, as she had asked him to do. She set her phone to record, and held it under the pillow, so the accused would not see it. Unfortunately, she later discovered that the phone had turned off after recording nothing but a few seconds of generator noise, and so she deleted it.

[26] The accused came back into the trailer. The complainant told him to go back to bed; she was tired. She turned her back to the accused, who sat beside her. She moved to get away from him. The accused lay down beside her, and put his arm over her stomach. He tried to put his hand in her pants. The complainant told the accused to stop and to leave to the other trailer; she needed to sleep. His hand was in her shirt, as she kept moving away. She grabbed his wrist or pushed him away with her elbow and said, “No!”, as he tried to undo her belt.

[27] The accused ultimately did undo the complainant’s belt and pants, and put his hands in her pants, and his fingers into her vagina. She told him to stop, kept moving further away, and attempted to move his hand away. He tried to pull her pants down, and then pulled her on top of him, facing him as he lay on his back on the bed. In that position, the accused completed pushing her pants down. He pinned her arms between his arms and his torso. She could not move. He put his fingers back inside her. With her face in the pillow, she hampered his attempts to move her to gain better access, by acting as dead weight upon him: “I was making myself really heavy”.

[28] The accused pushed the complainant off, face down on the couch. He moved in behind her, and pulled her pants and panties off. She felt his weight on the couch, and then he grabbed her hips.

[29] At this point in her narrative, the complainant, as elsewhere on many occasions, paused for an extended time. While it was clear that she was experiencing some back pain and was sick, many of her extended pauses appeared to be attempts to collect herself before continuing what seemed to be the ordeal of speaking about the incident.

[30] The accused picked the complainant up onto her knees by her hips. He undid her bra under her shirt and touched her breasts with one hand while inserting the fingers of his other hand into her vagina. At some point, the accused reached his hand deeply enough into the complainant’s vagina that he was able to pull out her contraceptive device, her “NuvaRing”. The complainant felt a lot of pressure and a sharp pain. The complainant was ultimately uncertain at what point this took place, and gave testimony that it was either before sexual intercourse or during sexual intercourse. The complainant apparently did not see the device again, and it was not found in the later police search of the trailer.

[31] The accused started performing oral sex on her. The complainant was crying by this point. The accused told the complainant to take off her shirt; she replied, “No”. He said that “it was going to get really hot”. The complainant said that she did not want to take off her shirt, and asked the accused to stop. She clenched her arms to prevent him from removing her upper garments. She heard him undo his belt and the sound of his keys falling a few times. In the darkness, she saw his movements removing his clothing. He got back on the sofa. She was wearing a hooded sweatshirt, at least one other shirt, and her bra. She told him to stop.

[32] The accused grunted and groaned as he ground his genitals against her and commented, “That’s nice”. Grabbing the complainant’s hip, the accused pulled her leg back, and pushed his penis inside her vagina very hard, hurting her.

[33] The accused was “really rough” with the complainant. She continued crying. Intercourse went on for a long time. The complainant asked him please to stop. She told the accused that she did not want to do this. He paused once or twice, and then continued after not too long. At some point, the accused put his arm on the back of the complainant’s neck and pulled her hair. And at some point, the accused kissed the complainant’s neck and her hip.

[34] At one point, the accused tried to sodomize the complainant, but she said “please don’t”, and moved to try to get away. She reached for the flashlight on the shelf, in order to “use it to get out of the situation”, but it fell. The complainant testified that at this point, she “gave up”, and “let him do what he was going to do”.

[35] The complainant testified that her voice got louder throughout the incident, and she was surprised that she didn’t wake anyone up. She was shouting at two or three points. Nevertheless, no one came out of the bedroom throughout the incident in the trailer. During the incident at various points, the complainant could have gotten up and gotten to the bedroom, where the couple were, or left the trailer, but she did not, as she felt constrained by the difference in size between her and the accused.

[36] The accused continued “until he was finished”. After he was done, he got up and got dressed. The complainant asked the accused where her clothes were. She found her pants, and the accused found her underwear and tried to put them on her. She grabbed them from him, and said, “I can do it myself!” The accused, once dressed, said that he was going outside for a cigarette. The complainant told the accused that she would be out in a minute; she was just going to get dressed. She did not know what to do, and wanted to be alone to collect her thoughts. The complainant waited inside for a short time, collecting her belongings and thinking about what she was going to do. She decided that it was safer to leave than to stay.

[37] The complainant looked outside to see where the accused was. After leaving the trailer, she told the accused that she was going to her van. She went to her vehicle, and noted that the seat was still back from when the accused had driven it earlier to get gas for the generator. She could not find her keys at first, and wondered how she was going to get out of there. Finally, she found her keys in the ignition and drove to the hospital in Little Current in “shock”, so she had trouble remembering where it was. She did not know what entrance to use, and finally pressed the doorbell at admitting, at the other side of the hospital from the emergency room. Her phone told her that the time was “three fifty something”.

[38] Once inside, the complainant got her bearings and started walking to the emergency room. She was met en route by the on-call nurse, Tracey Gelaznikas, whom she knew. The complainant told Tracey that she needed a “rape kit” done. The complainant was crying. The nurse said that she would call police, and did so after sitting with the complainant for some minutes. After that call, the two waited together for the police to arrive, although the nurse had people coming into the emergency room to attend to. During that time, the complainant did not try to call anyone on her cell. She discovered that the recording she had tried to make had recorded nothing of value, and for only three seconds, and she decided to delete it.

[39] Tracey Gelaznikas testified that she encountered the complainant at 4:15 a.m. on August 1, 2015. She noted that the complainant was crying and shaking throughout the hour they were together waiting for police to arrive. She smelled no alcohol on the complainant, but the complainant did smell of wood smoke. The complainant wanted to change, but nurse Gelaznikas told her to keep the same clothes on. The complainant did not want nurse Gelaznikas to call her mother, and Gelaznikas did not see the complainant use her cellphone at all.

[40] From the emergency room in Little Current, the complainant was brought to Health Sciences North in Sudbury in a police car. The complainant called her grandmother from the car at about 6:00 a.m. In Sudbury, the complainant waited in the emergency room until the sexual assault nurse came to get her and examined her. The complainant spoke there with her counsellor Goodwin and her mother.

[41] Roberta O’Reilly, the sexual assault nurse who examined the complainant on August 1, 2017 in Sudbury, testified about her findings. She relied for her testimony on what she had written in the various forms that are filled out during a sexual assault examination and interview, but did not remember her dealings with the complainant.

[42] Nurse O’Reilly noted reddening to the complainant’s genital area. The complainant described the area as painful: 5 out of a scale of 10 to the touch. There was thick white discharge from the vagina. Nurse O’Reilly was not qualified to offer expert testimony about the cause of the redness. In any event, I find that such redness could be consistent with vigorous sexual activity, but is not helpful in assisting on the issue of whether that activity was consensual. Nurse O’Reilly did not observe the NuvaRing, but could not say that she would have seen it during her examination of the complainant.

[43] If the complainant had told her that her assailant had removed her contraceptive, nurse O’Reilly felt that the fact should have been written down, but she had no recollection. The nurse also agreed that she was told by the complainant that there was attempted anal penetration by the assailant’s fingers, and she checked off that a lubricant was used. However, in another spot, it is checked off that lubricant was not used. The complainant indicated that her assailant finished or ejaculated, but she was not sure.

[44] After examination by the sexual assault nurse, the complainant went with one of the police investigators, Detective Wall, to the Sudbury detachment of the Ontario Provincial Police. The complainant’s clothes had been seized by the sexual assault nurse, and the complainant changed into different clothes that her mother brought for her. The complainant testified that she was exhausted, and could not think, but gave a videotaped statement to police, starting at about 11:30 a.m., for an hour and a half.

[45] The complainant provided a second statement, handwritten, September 25, 2015, as she thought of more that she should have said, though without having watched her video statement. Out of embarrassment, she had left out that the accused had licked her all over her genital area. She explained in her evidence that she was not then very sexually experienced, and it was embarrassing to talk about that act. Likewise, she had not told her initial interviewer that the accused had shoved his whole fist into her vagina, and that the pain made her want to vomit. She testified that she had just wanted to forget about it. She explained that it was still difficult for her to talk about it.

[46] The complainant gave a third statement on July 20, 2016, again handwritten, concerning things she thought she had at some point already said to police, but had not mentioned in her initial statement. The complainant reached for the flashlight during the sexual assault, and it fell. The complainant also told police that she heard the accused’s keys repeatedly falling during the sexual assault, and the accused would pick them up. In her evidence at trial, the complainant agreed that the falling flashlight and keys did not cause anyone to come out of the bedroom of the trailer.

[47] Det. Cst. Denis Villebrun is with the forensic identification unit of the Ontario Provincial Police. He was called to document the scene of the incident on August 1, 2015, and arrived at 6:59 p.m. at the trailer, which was being kept secure by another officer. On route he was advised that the assailant in an alleged sexual assault in the travel trailer had removed the complainant’s birth control device.

[48] Detective Villebrun took photos that were entered as evidence. He estimated that the distance between the couch and the entrance to the bedroom in the trailer was about 15 feet. The “door” to the bedroom was a plastic resin accordion style screen. He did not find the NuvaRing device, but had no description of what it would look like. He found no flashlight on the ground by the couch or elsewhere in the trailer, but did locate one on the bed in the bedroom, where in fact witness Margit Vadaszi said she had one.

[49] Although the officer did not notice it or speak of it in his testimony, the presence of another flashlight is verified in a photograph that he took. Exhibit 11, photo 14 preserves the image of a flashlight near the surface in amongst rubbish in a deep grey garbage can. This garbage can appears to be almost full and very near two small wooden shelves close to one end of the sofa on which the complainant had been trying to sleep the night before the search. I find the presence of this flashlight to be corroborative of the complainant’s account.

[50] In August 2015, the complainant applied for WSIB benefits after her complaint. Her claim was denied because she was not employed the evening of the incident with the accused. The same month, she resigned from employment at C[…]. On October 18, 2016, the complainant instituted a lawsuit against the accused and C[…], seeking substantial general damages, damages for aggravated mental distress, and punitive damages.

[51] It was suggested to the complainant, and denied by her, that: this allegation was financially motivated, to allow the complainant to get money from the accused and C[…]; that the incident in the trailer was consensual; that the accused never touched the complainant at the stage by the amphitheatre; that the accused never removed the complainant’s birth control device; and that the complainant stayed in the trailer after the consensual intercourse long enough to fabricate a rape story.

The legal framework

Presumption of innocence

[52] The accused started this trial presumed to be innocent of the charge he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that he committed the offence with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. As Laskin, J. (as he then was) held in R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303, at para. 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.

[53] I have remained cognizant of the burden of proof and that it never shifts to the accused throughout my dealings with this case. Although in my analysis I occasionally note that there is no evidence of some point or another, those discussions should not be read as any indication that I shifted the burden of proof to the accused at any point, or required him to produce evidence.

Sexual assault

[54] For a finding of guilt to the charge of sexual assault, the Crown must prove, beyond a reasonable doubt: a touching, of a sexual nature, in the absence of consent. As to mens rea, the accused need only intend to do the touching, as it is a general intent offence: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25, 41.

[55] The Crown must prove that there was no consent, and, where there is an air of reality to consider it, the Crown must disprove the defence of honest but mistaken belief in consent. However, there is in law no defence of “implied consent”. Concerning consent, only two findings are possible: either the complainant consented or s/he did not consent. It is not open to a court to accept the evidence of the complainant that s/he did not consent, but at the same time find that the complainant’s conduct raises a doubt about consent: Ewanchuk, at paras. 31, 41-52.

[56] Concerning the element of the complainant’s consent to sexual contact, s. 273.1 of the Criminal Code sets out situations in which no consent is obtained, including s. 273.1(2)(b), where “the complainant is incapable of consenting to the activity”, and (d), where “the complainant expresses, by words or conduct, a lack of agreement to engage in the activity”. A complainant’s evidence that s/he did not consent may be challenged by reference to words or conduct of the complainant that could raise a reasonable doubt about the claim: Ewanchuk, at para. 29.

[57] If there is an air of reality to such a defence, an accused may advance a defence of “honest belief in consent”, to negate the mental element of the offence. This defence is subject to the statutory limitations found in s. 273.2 of the Criminal Code, that the belief must not arise from the accused’s self-induced intoxication, recklessness, or wilful blindness, and that the accused must have taken reasonable steps to ascertain that the complainant was consenting.

[58] An accused’s belief that silence, passivity, lack of resistance, or ambiguous conduct on the part of a complainant can constitute consent is a mistake of law, and provides no defence, particularly after the complainant has indicated unwillingness to engage in sexual contact. Nor is it a defence that the accused believed that the complainant’s expressed lack of agreement was merely an invitation to more aggressive advances: Ewanchuk, at paras. 41-52 (and the sources cited therein).

Credibility and reliability

[59] In this case, the issue that directly confronts the court is the issue of the credibility and reliability of the evidence of the complainant. For it is that evidence on which the Crown relies in the main to satisfy its burden, and it is problems with that evidence that the defence submits must leave the court with a reasonable doubt. Accordingly, it is necessary to consider the law concerning those issues.

[60] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-15):

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)… (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31.

15 …[P]rior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272 …, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161…, at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), [1994] 93 C.C.C. (3d) 456 (C.A.), …at p. 471 C.C.C. [some citations eliminated]

[61] While inconsistencies on minor matters or matters of detail are normal and are to be expected, a trial judge must be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral”, and thus avoid the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, at para. 17. An issue for assessment in the analysis and weighing of inconsistencies is whether the “core” of the allegations remains intact: R. v. R.A., 2017 ONCA 714, at para. 46; R. v. Roy, 2017 ONCA 30, at para. 14, and R. v. Barua, 2014 ONCA 34, at paras. 7-8.

[62] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[63] In making these assessments, it is necessary to bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. In particular, the authorities teach that courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing, 2002 SCC 58, at para. 121.

[64] One common example of this axiom, relevant to this case, relates to when and how people who are alleged to have been victims of abuse report that abuse. There are many completely understandable reasons why people delay disclosure of abuse, or aspects of abuse, including such things as embarrassment, fear, a sense of guilt, or a lack of understanding or knowledge. The timing of disclosure “is simply one circumstance to consider in the factual mosaic of a particular case”, and delayed disclosure need not cause an adverse inference against a complainant’s credibility: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

The text message to Goodwin and the self-recording

[65] Exhibits 1 and 2 on this trial consist of the complainant’s text message to Goodwin and her “self-recording”, respectively. It is important in this trial to consider the use to which that evidence can and cannot be put in the circumstances of this trial.

[66] The evidence of the text message to Goodwin can be used as part of the narrative, to show the fact and timing of a complaint, in order to assist in the assessment of the credibility of the complainant. The probative value in this circumstance lies in the fact that the message was sent. However, the description of events in the message may not be used for its truth or the impermissible purpose of confirming the truthfulness of the sworn allegation, as it is in the nature of a prior consistent statement: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 36-37

[67] On the other hand, declarations of a person’s intentions or state of mind are admissible for their truth and to support an inference that the declarant followed through on an intended course of action, or acted consistently with a declared state of mind: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 169.

Positions of the parties

Crown position

[68] The Crown submits that the complainant’s evidence is sufficient to establish the allegation of sexual assault beyond a reasonable doubt. In the Crown’s submission, the offence is made out either by the non-consensual groping at the stage on the walk back from the woodpile, or by the non-consensual sexual contact in the trailer.

Defence position

[69] It is the position of the defence that there was no groping at the stage, and that the contact that took place in the trailer was consensual. The defence submits that the complainant’s evidence is incredible and unreliable, as a result of numerous material inconsistencies and incremental additions to her story over time. The complainant has fabricated her story of a non-consensual sexual incident with the accused in order to be able to get money from him and C[…] in a lawsuit. She engaged in consensual sex with the accused, and afterwards set into motion this criminal complaint alleging non-consent. Her account is contrary to common sense in many ways.

[70] In the analysis that follows, I have considered all of the evidence on the trial, even if I have not mentioned it all in these Reasons.

Analysis

Inconsistencies and omissions

[71] It is the defence position that the incremental disclosures in the complainant’s account, and the many inconsistencies and omissions in the various accounts she has given of her narrative of events, should detract from the complainant’s credibility and reliability, and raise a reasonable doubt.

Overview: issues surrounding the “fisting” allegation

[72] Appellate authority has drawn a distinction between material inconsistency and inconsistency with respect to peripheral detail. No memory is perfect, and every repetition of the description of an event to various audiences will see changes: in points of focus, with respect to details, and in emphasis. This is especially true in contexts where questions are being asked of the narrator concerning hitherto unnoticed or incidental aspects of the account. Such an exploration can become oppressive, and mentally exhausting, where a witness is challenged to recall and explain inconsistencies among multiple statements given on multiple occasions.

[73] As an example of these observations in the circumstances of this case, I turn to the issue of what has been called at this trial the “fisting”, which stands in this case as the matter involving the most significant omissions and apparent inconsistencies.

[74] It was pointed out to the complainant that at the preliminary inquiry she had stated that she did not speak of the “fisting” in her original statement to police because she was embarrassed, while at trial she said she wanted to forget about it. It was also put to the complainant that she had not even mentioned the “fisting” at trial at all, to which the complainant responded that she had testified that the accused had removed her cervical contraceptive after inserting his hand into her vagina. Whether the complainant related her original failure to tell police about this aspect of her evidence to her embarrassment or to a desire to forget about it, and whether the hand that the accused forced into the complainant was open or balled into a fist are, in my view, distinctions of little moment.

[75] I find that the complainant’s incremental disclosures in the circumstances of this case, about the “fisting” and the various other “late”-disclosed details, relate to delays caused by embarrassment, as here, or by the complainant’s lack of understanding about the potential significance of minor details or lack of present knowledge about incidental details. The complainant maintains her focus on core events, but many incidental details come out through the probing questions of repeated examinations. I draw no adverse inference against the complainant’s credibility or reliability from her gradual and continuing ability to offer additional detail over time.

[76] But there is more. The complainant was inconsistent about the point at which the accused removed her contraceptive, either before or during intercourse. To me, what is significant is that the accused inserted his hand into the complainant and removed the device at some point. Many points during this incident were painful and/or embarrassing to the complainant. The complainant has described unwanted sexual contact with the accused – gropings and fondlings of her stomach, breast, and vaginal area; digital and manual penetration; cunnilingus; sexual intercourse; and attempted anal intercourse – at the stage and in the trailer, involving a variety of incidental detail. If in the recitation of so many facts, and on so many occasions between 2015 and trial, the sequence suffers, or explicable inconsistencies emerge, I find that that does not significantly detract from the complainant’s credibility or reliability. The core of the account remains.

[77] I also make note of the complainant’s answers about not being able to recall the sequence, that: “I can’t remember today, but I may have remembered [in the testimony in-chief]” mere days earlier, which she explained was due to the fact that she was “very overwhelmed, tired, and sick”. I mention this because, in my view, although it is important to explore inconsistencies and test the evidence of witnesses, courts must never lose sight of the duty of the justice system not to ignore the physical, emotional, and mental toll that the process takes on witnesses. A court that simply counts inconsistencies without having regard to the inevitable cost to the truth-seeking function of examination on multiple layers of statements and the inevitable inconsistencies that develop, may too readily discount the limits of mental endurance in the alien atmosphere of the criminal trial.

[78] This emphasis on things said and unsaid, and on inconsistencies in the complainant’s evidence was largely the tenor of the cross-examination, and I found that it achieved several things: it convinced me that the complainant was being taxed with omissions and inconsistencies that were either not inconsistent, or that were so academic or trivial as to be simply the stuff of the normal operation of human memory and the limits of human powers of description; it allowed me to see how forthright the complainant remained during a forceful, detailed, and painstaking examination; and it permitted me to recognize that the essential outlines of the complainant’s allegations held clear. The core elements of the complainant’s account remain.

[79] What is also clear about the complainant’s evidence is that she has little ability to be accurate concerning the time or the timing of things. When she left Espanola for Little Current, when dinner was eaten, what time it was that the accused touched her breast, how long the incident in the trailer lasted, and how long she remained in the trailer after the accused had finally gone, were fruitful areas for inconsistencies or error, but were not “events that are in issue”. The complainant explained that she was only estimating times, and her evidence made clear that she constructed signposts from the times she occasionally noted on her cellphone.

[80] I am not troubled by time or timing inconsistencies in the circumstances of this case, because in my view they are not material. Whatever happened between accused and complainant can securely be placed “on or about the 1^st day of August, 2015”, as averred in the indictment. I will consider below the issue of time unaccounted for by the complainant’s account, in the context of the defence assertion that the complainant spent time in the trailer after consensual intercourse confabulating a rape story to permit a lawsuit against the accused and C[…].

[81] The cross-examination of the complainant demonstrated counsel’s mastery of the statements and testimony of the complainant and other witnesses, and the significant effort that went into a thoroughgoing exploration with the complainant of inconsistencies and omissions in amongst the various accounts she has given. Nothing in what I have said or will say in these Reasons is intended to be critical of counsel.

[82] In what follows, I have attempted to group counsel’s list of inconsistencies or omissions into logically related areas for consideration. The order of the presentation implies nothing about their relative importance to my conclusions.

The touching at the stage by the amphitheatre

[83] The most significant set of discrepancies or omissions concerning what happened at the stage involves the following: The complainant told police that the accused touched her breast, stomach and back, turned her around, and tried to kiss her. In her text message to Goodwin, the complainant said only that the accused touched her under her shirt, and did not mention the attempted kiss. At trial, the complainant spoke of the accused touching her stomach and left breast, but did not mention being turned around and an attempted kiss, or any touching of her back.

[84] I do not find that the variations in these details are of great significance. The core of this part of the incident involves the touching of the complainant’s breast while the complainant attempted to stop it. In that context, other less intrusive touchings are peripheral and do not require complete exposition from the complainant. The presence or absence of those other details in the circumstances of this allegation make no difference.

Inconsistencies relating to the evidence of nurse O’Reilly

[85] Many inconsistencies were explored with the complainant based on things that she did or did not tell Roberta O’Reilly, the sexual assault nurse at the hospital in Sudbury. In the circumstances of this case, the force of such contradictions or inconsistencies is weakened by frailties in the evidence of nurse O’Reilly. Nurse O’Reilly appears to have retired shortly after her examination of the complainant, and she appears to retain no current memory of that examination and its companion interview. Rather, she relies on notes made of her examination, and notes transcribed onto sexual assault kit forms from rough notes that she made at the time on different pieces of paper. She also appears not to have given the complainant an opportunity to verify that the information she was noting down as coming from the complainant was accurate.

[86] The complainant told the sexual assault nurse about the accused performing oral sex on her, but did not mention it in her first statement to police. The complainant explained that this was another act that embarrassed her, given her limited sexual experience at the time. Appellate authority instructs courts to understand that disclosures can be made at different points in time, in different circumstances, for different reasons, and I find that the mention of this aspect of the incident to the sexual assault nurse, but not to a police officer, attracts no adverse inference. Indeed, the mention to the nurse, whose examination of the complainant took place the same day as the complainant’s videotaped police interview, serves to rebut any allegation of recent fabrication.

[87] The nurse noted that the complainant told her that she used the NuvaRing as her contraceptive of choice. The nurse did not recall the complainant telling her that the accused had removed the Nuvaring, and it was something that she would have written down if the complainant had mentioned it. She did not see the contraceptive device during her internal physical examination of the complainant. The complainant initially testified to being unable to recall whether she advised the sexual assault nurse that the accused had removed her contraceptive, but was later brought to state that she did tell the nurse.

[88] I am unable to conclude that the complainant did tell nurse O’Reilly about the removal by the accused of the contraceptive, given the nature of that inconsistency, and the absence of any notation by the nurse. However, I do not see the omission of that detail to the nurse as being of any significance in the context of the complainant’s mental state and fatigue during her examination by the nurse, or the change in testimony as having any significance, given the questioning that brought the change from a mentally exhausted witness. I note in addition that the detail of the contraceptive removal by the accused was somehow relayed to Detective Villebrun, the site investigator, before he commenced his examination of the scene, so it is apparent that the removal of the contraceptive by the accused was not a late invention by the complainant.

[89] As an aside at this point, I am not concerned that the NuvaRing that the complainant testified was removed by the accused was not found. It is a small and inconspicuous object in any event. But in addition, the accused had hours, between when he must have realized that the complainant had precipitously left the Flat Rock and the arrival of police on scene, in which to dispose of the device, if he had not yet already done so.

[90] Nurse O’Reilly noted on her form that there was attempted anal digital penetration by the accused, and that lubricant was used. The complainant nowhere else testified about or told anyone this, and in cross-examination denied saying that to the nurse. Again, given the fact that the nurse has no present recollection of this examination, and that she did not show the complainant how she filled out her examination forms, I attribute no weight to this note. I do not accept that the complainant told nurse O’Reilly that the accused had attempted to penetrate her anus with his fingers. Likewise, the nurse herself observed that in different locations she had it noted that lubricant was or was not used. The lubricant notation seems more likely an error by the nurse than the complainant, as nurse O’Reilly herself observed in her testimony, and just so, the digital anal penetration note seems to be an unintentional slip.

[91] The complainant told police that the accused had ejaculated during the assault, and was certain about that, but told the sexual assault nurse that she was uncertain if the accused had ejaculated. At trial, the complainant merely stated that the accused “finished”. In commenting on the discrepancy in her answer to the nurse, the complainant explained that she was answering the nurse’s questions to the best of her knowledge, but she was feeling “very overwhelmed” at that point. Perhaps greater accuracy would have been achieved had the complainant’s answers to the nurse been reviewed with her. In any event, I completely accept that the complainant’s account on the day following this event would be affected by her distress. It is apparent to me that not only was this complainant traumatized by the sexual assault in the trailer on August 1, 2015, but that she remains significantly affected by what took place. Nevertheless, the complainant’s equivocation on this point calls out for corroboration that has not been offered.

More minor inconsistencies

[92] In what follows, I note various minor inconsistencies that were all explored in depth in cross-examination of the complainant. I could dismiss them all very briefly as having had virtually no impact on my assessment of the complainant’s credibility or reliability. Nevertheless, I discuss them here in slight detail, if only to give a flavour of the exploration to which the complainant’s accounts in her various versions have been subjected, and to permit some insight into how mentally exhausting this exercise was for the witness.

[93] Concerning events leading up to and including the groping at the stage, and the complainant’s return to the campfire, such things as the following were explored, with inconsistencies and omissions pointed out as among the complainant’s message to Goodwin, her initial statement to police, and her testimony at the preliminary inquiry and at trial:

a. Only at trial did the complainant state that the accused had asked her to pick up beer on her way to the Flat Rock;

b. At what point in time the complainant began drinking her one beer: before or during dinner;

c. Whether the complainant drank the sip that remained in the accused’s beer when he handed it to her at the stage before opening the other one that he had brought on the walk;

d. Whether it was the complainant’s idea or the accused’s to get wood from the woodpile, and who went with whom: she with him, or he with her;

e. Whether the accused touched the complainant’s breast two times or three, and that the text message to Goodwin indicates a touching “under [the] shirt” rather than of the complainant’s breast. Goodwin would not have expected or needed more detail, and the difference between two or three touchings is inconsequential;

f. Whether the complainant, to stop the accused from touching her breast, said “no”, or “stop”, used her hand to move his away, or walked away. I am satisfied that the complainant resisted the accused’s groping, and made clear to him that she was not consenting to it;

g. Whether the complainant told the accused she was too young for the accused during, or after, the groping of her left breast;

h. Whether, after the breast touching, the complainant returned to the campfire smiling or laughing or with a stern look on her face. I take this to indicate that the complainant was confused and upset by what her boss had done to her, and her features and conduct at that moment expressed that confusion;

i. The complainant claimed to Goodwin in her text message that she was intoxicated and incapable of consenting, but also said that she wanted to send the message while events were “coming out fresh in her mind”. I see no inconsistency;

j. The complainant testified that in her vehicle her “intentions were to get a hold of Gerlinde”, to get the counsellor to pick her up. However, the complainant made no such request in the voice message left for Gerlinde Goodwin when she failed to reach Goodwin. I find, however, that what the complainant would have done had she reached Goodwin in person is not to be determined by the message left for an absent Goodwin.

[94] Concerning events in the trailer, cross-examination could also refer to the complainant’s second and third statements to police. Such things as the following were explored and require little comment:

a. The complainant stated for the first time at trial that she had to ask the accused to repeat himself a few times when he spoke to her in the trailer, as she had difficulty hearing him over the noise made by the generator and the wind. So far as I can tell, this was the first time she was asked about whether she had any difficulties hearing the accused;

b. Whether it was on the accused’s second or third entrance into the trailer that he commenced his sexual assault of her;

c. Whether the accused stood or sat beside the complainant on the sofa when he first came into the trailer;

d. Whether, on his last entrance into the trailer, the accused sat beside the complainant, then lay down beside her and started touching her sexually; or whether the accused sat down, then lay down, sat back up and shifted her legs, before lying down a second time and touching her sexually. To me, this is virtually the same conduct, as I find it was to the complainant, although with the slightly greater detail given to police in her original report;

e. Whether the complainant “gave up” when the accused initially put his hands down her pants, or at the point when she dropped the flashlight that she had been reaching for;

f. Whether the complainant grabbed the accused’s wrist to remove his hand from her pants, or whether she used her elbow to push his hand away. I find that the one type of resistance likely merged into the other, but unfortunately to little effect;

g. Whether the accused paused once during his vaginal intercourse with the complainant, or twice, while she was telling him that she did not wish to do it. Whether the accused paused once or twice, he continued sexual intercourse on either side of the pause or pauses. That consistency may be material, but the number of pauses is not;

h. Whether the accused first digitally penetrated the complainant’s vagina when he was lying beside or when he had pulled her onto him as he lay on his back on the sofa. Given the variety of touchings and penetrations suffered by the complainant during the course of that night, I am not troubled if the complainant does not recall at what point the accused first digitally penetrated her;

i. Whether the complainant simply said “no” when the accused told her to take off her top, or clenched her arms to prevent her top from being removed. The complainant’s efforts at resistance are not on trial. What I take from the complainant’s evidence is that she continuously attempted to express to the accused her lack of consent to his acts, by a variety of means. The complainant is consistent that her bra was undone, but that her upper body clothing was not removed;

j. At the preliminary, but not elsewhere, the complainant testified that the accused kissed the complainant’s neck and hip at some point during intercourse. Such incidental details of kissing do not detract from the core of the complainant’s evidence. I do note, however, that there is no evidence before me that the complainant kissed the accused.

k. For the first time at trial, the complainant spoke of the accused having his hand on her neck and pulling her hair at some point. On the other hand, to police, the complainant said that the accused pushed her face into a pillow. I do not see these details of passing conduct during the encounter as being of any significance to the core of the complainant’s account in the circumstances of this case;

l. In the complainant’s statement to police she stated that when she left the trailer, she encountered the accused, who asked her where she was going. She responded that she was going to her van to get some sleep. At trial, the complainant first testified that no words were exchanged at this point, but then stated that she told the accused she was going to her vehicle, but did not remember if he spoke to her. I can find no significance in whether or not the accused said anything to the complainant. What is significant is the complainant’s overwhelming desire to get to her vehicle and leave. I find the fact that the complainant did not want to reveal to the accused that she was leaving is consistent both with the complainant’s narrative and within her various accounts.

Conclusion on inconsistencies and omissions

[95] Concerning the inconsistencies and omissions among her various accounts of these events in general, the complainant explained that she believed that the shock she experienced at the time may have affected her recollection of aspects of the incident at first instance. The complainant explained “I told this story many times over the last two years. And things get jumbled. I recall more”. And “[t]hings come out different when you’ve had more time to think about it”.

[96] Although the complainant testified that her memory improves with time, I find that the complainant recalls more details as she relives the events through retelling her story, or as she is asked about things that had not come up before, but that the passage of time takes away her ability to contextualize those details. Those are the hazards of being required many times over two years to describe an encounter such as this one. These changes represent the limits of this witness’s ability to maintain her memories against the inroads of repeated questioning and suggestions about various details. I am not at all surprised by such variations, and I find that they do not detract from the complainant’s credibility or reliability. The core elements of the complainant’s account remain intact.

The money motive

[97] The defence submits a financial motive behind the complainant’s allegation, and posits that the complainant makes a false allegation for financial profit. The grounds for that assertion include:

a. The complainant was earning very little, but aspired to more and wanted to get out of Espanola;

b. The complainant applied for WSIB in August 2015, but was denied;

c. The complainant has sued the accused and C[…] for $2,000,000;

d. The complainant had studied the law about consent, and knew that it was a central feature in allegations of sexual assault;

e. The complainant had no need to prepare to sleep overnight in Little Current. She could have returned to Espanola to sleep;

f. Instead of focusing on getting out of a bad situation, the complainant sought to create evidence;

g. The complainant chose not to sleep in her van, which she could have locked to ensure her safety;

h. The complainant deleted the recording of the opening seconds of her last encounter with the accused, rather than turn it over to police;

i. The complainant’s account leaves time unaccounted for after the alleged sexual assault and before the complainant’s attendance at hospital in Little Current, during which the complainant could have organized her false story.

[98] I begin by observing that this theory was put to the complainant and denied by her.

[99] The fact that the complainant did not like living in Espanola is hardly a solid leg on which to support the assertion of a motive to make a false criminal allegation. Nor can it be reasonably said that the court should be suspicious of the complainant’s account because she had decided to remain sleeping on site among her colleagues, rather than add to her weekend itinerary two hours of driving between Little Current and Espanola. The complainant had a right to behave like everyone else and remain overnight in the security trailers.

[100] Much emphasis was placed in cross-examination on the complainant’s “research” into the issue of lawful consent, with the implication that the complainant was getting ready to stage this accusation. However, the complainant testified that this was not a focused effort. Rather, discussions of consent naturally came up in school and on social media, and her father had suggested that she read books he had on law and criminology that included discussions of this topic, long before the incident in Little Current arose. I accept the complainant’s explanations in this regard, even if her view that half a beer can take away a person’s ability to consent seems overbroad. I accept her testimony that she had been engaged in this study for years prior to this incident and that it was not a sudden topic of interest.

[101] I do not accept that the complainant’s WSIB claim and lawsuit support the defence theory. The complainant explained that her WSIB application related to her job with C[…]. She was turned down not because her claim was unfounded, but because she was deemed not to have been working on the night in issue. The lawsuit was only instituted more than a year after this incident, and the complainant left the details of the suit to her counsel. The focus of a criminal trial is quite properly on ensuring fairness to the accused. An aggrieved complainant should be entitled to seek her own redress as offered through administrative tribunal or civil claim, without those steps necessarily being used as a means of subverting her credibility at the criminal trial. The complainant had a right to take such legal action.

[102] In an era of ready access to messaging and recording opportunities by use of the ubiquitous cellphone, I find nothing suspicious in the message sent to Goodwin or in the self-recording made by the complainant while sitting in her van after the groping at the stage. Her phone was to hand, and she used it to preserve her thoughts. The complainant has explained the variety of concerns that beset her, and what she felt were the limitations on her options, and I accept that explanation as a reason for her making Exhibits 1 and 2. Nor is it unreasonable of the complainant later to wonder if she had overreacted to her boss’s unwanted attentions at the stage, and to choose the comfort of a sofa over a car seat for sleeping.

[103] No evidence has been adduced challenging the timing of the message to Goodwin, which, sent at 12:39 a.m., long before the complainant went to bed in the trailer or to the hospital, verifies that something had come up to alarm the complainant into making a record about her non-consent.

[104] Rather, the evidence finds the accused in what he would submit to be a consensual sexual encounter with the complainant, in her trailer, not his, with no countervailing explanation than the complainant’s about how that encounter came about. How could the complainant have set up such a situation to ensure the accused’s participation in her money-making scheme? There is no evidence on this trial that the complainant invited the accused into her trailer or suggested a sexual encounter, and yet the accused happened into the trailer and there was a sexual encounter. The claim of a set-up by the complainant makes no sense on the evidence this case.

[105] It has been suggested that the complainant’s decision to erase the attempted recording from the trailer is proof of her deceitful intent, as that recording might well have preserved some indication of the complainant’s actual consent. This theory is speculation, and I reject it. In any event, it requires one to ask why the complainant would even mention the recording and its deletion to investigators, as she did, when she could simply have remained silent about such “suspicious” conduct.

[106] As I have found, the complainant’s assessment of times throughout her evidence is manifestly unreliable. She is a person of the electronic age, and that age includes the dominance of the cellphone. Her stated times can assist when she refers to a cellphone, but otherwise on that score she is an unreliable reporter. I find that the trailer incident took longer than the complainant estimated, or that the complainant remained for a longer period in the trailer than she thought. For reasons I have already discussed, I do not accept that the complainant used any of that time creating a story for the purpose of a false allegation.

[107] I would also add at this point that the complainant’s account is significantly corroborated by her noticeable emotional upset, as observed by nurse Tracey Gelaznikas shortly after the incident in the trailer: see R. v. Varcoe (2007), 2007 ONCA 194, 219 C.C.C. (3d) 397 (Ont. C.A.), at para. 33; R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.); Murphy and Butt v. The Queen (1976), 1976 CanLII 198 (SCC), 29 C.C.C. (2d) 417 (S.C.C.), at 425-29.

Applying common sense to the complainant’s account

[108] The defence submits that the complainant’s account is very improbable and defies common sense, in that:

a. There was no outward indication of the accused’s interest in the complainant that night. The text messages between the two from prior to July 31, 2015 contain no suggestion of impropriety, sexual innuendo, or harassment by the accused towards the complainant. There was no particular focus by the accused on the complainant during the evening in issue. Indeed, the complainant herself has the accused talking to someone on the phone for an extended period before events in the trailer allegedly transpired;

b. The noise of the encounter would have drawn attention. The complainant’s account requires that the accused would engage in lengthy violent sexual activity within earshot of other security guards, including two women, with a couple sleeping in a bedroom only 15 feet away whose door is simply a sliding plastic divider. All the while, the complainant told the accused repeatedly to stop, spoke loudly or shouted on several occasions, was crying throughout, and keys and a heavy flashlight fell. And yet no one came out of the bedroom or into the trailer;

c. Moreover, it was unlikely that the accused would risk arrest in front of his young son, so far from home; and

d. The risks involved in a non-consensual encounter were prodigious. As a trainer for a security company, the accused would know that the complainant was no “shrinking violet”. Rather, she was someone fond of expletives, as her text messages prove, and therefore not likely to be an easy target. The accused had no assurance that the complainant would not scream or run out during the assault. He exercised no control to keep the complainant quiet. A consensual encounter would be much less likely to alert people.

[109] I will consider these arguments, as well as other matters that came up during the course of the evidence or submissions.

There was no outward indication of the accused’s interest in the complainant

[110] It is the defence position that there was a consensual sexual encounter between accused and complainant in the trailer. In that circumstance, common sense dictates that at some point the accused was interested in a sexual encounter with the complainant on the night in question, even if he had to speak on the phone for some reason, or otherwise evinced no particular outward interest in the complainant.

[111] In any event, what does the absence of such evidence mean? There is no evidence before the court that the accused showed to any of the other persons on site that evening his willingness or interest in a sexual encounter with the complainant. There are many possible reasons why the accused would not wish to put on display to colleagues his sexual interest in his work subordinate. It does not defy common sense that the accused would keep his own counsel about his interest in the complainant.

The noise of the encounter would have drawn attention

[112] Of all the persons present at the Flat Rock that night, only the complainant and one other person testified. The evidence in this case has the generator near the trailers buzzing and the wind adding to the noise. There was thus evidence of background noise during the encounter between the accused and the complainant in the trailer that could have masked sounds made by the two. Apart from that observation, I have no reliable evidence to work with, and am unable to draw any conclusions.

[113] The only witness called on behalf of the accused was Margit Vadaszi, one of the couple who slept in the trailer bedroom while the accused was with the complainant in the outer part of the trailer. Ms. Vadaszi works with the accused at C[…], and was working as a security guard for that company on Haweater weekend.

[114] Ms. Vadaszi testified that on the night in question she slept through the night without interruption, though she claimed that, as a mother of a young child, she was a light sleeper. She heard no sound of crying or raised voices, no keys jingling, no struggle, and no thumping of heavy flashlights falling in the other part of the trailer. In her testimony, she also apparently did not hear the accused and the complainant speaking about the noise of the generator, or the complainant’s vehicle leaving. She slept through until about 9:00 a.m., when she heard various colleagues leaving, and then fell back asleep until about 10:30 a.m.

[115] What I take from this evidence is that Ms. Vadaszi, who was very tired, had consumed some alcohol that evening, and had no child to tend, either slept more soundly than usual, or was a poor reporter of her own general sleeping habits. What is a court to make of a self-report that a person with whom it is unfamiliar is a light sleeper? Such evidence begs the question: compared to whom? The fact that she heard nothing does not mean that there were no sounds. Even on unchallenged aspects of the complainant’s evidence, or the version of facts posited by the defence in questions to the complainant and submissions, there would likely have been things to hear.

[116] Ms. Vadaszi’s partner Robert, who was also in that bedroom, is in Hungary, and has been for a year and a half. He is unreachable, and Ms. Vadaszi has no contact information for him. Whatever he may have heard or not heard is unavailable to the court. Other than the complainant and the accused, several persons were present at the Flat Rock that night. Most did not leave until 9:00 a.m. on August 1. What those persons may have heard or not heard has not been offered in evidence at this trial.

[117] I find that, for whatever reason, about which I will not speculate, any noise made in the incident between the complainant and the accused either did not draw the notice of anyone else present at the Flat Rock that night, or did draw the notice of people who did not testify. Given the absence of reliable evidence to demonstrate that there could not have been sounds generated as described by the complainant, I do not find that this aspect of the complainant’s testimony defies common sense. The evidence of Ms. Vadaszi, either alone or in the context of the other evidence in the case, does not cause me to have any doubt about the evidence given by the complainant.

The presence of the accused’s son

[118] It has been submitted that the accused would not have put himself in a situation that could involve his arrest while he was in the company of his son, whom he had brought from a different part of the province. Apart from there being at this trial no indication of the accused’s general level of concern about his son and his relationship with him, I would simply observe that, if a person is prepared to brutalize a workplace subordinate at a work function, with colleagues from work in close proximity, the potential for arrest in front of his son must stand in the mix as nothing more than a minor possible additional embarrassment. Fortunately, it appears that arrangements were made by police on the accused’s arrest to ensure the safety of his son.

Opportunities for flight or self-protection

[119] The defence submits that the complainant’s account is illogical, because she asserted that she felt trapped after she was groped at the amphitheatre by the accused, and was unable to leave the area. In cross-examination, it was suggested to the complainant that she had many options for getting out of the situation. Options were explored, and the complainant answered that none seemed viable. I accept her explanations as reasonable, even if, with the benefit of hindsight, subsequent events show that taking firmer action might have yielded a happier result: cf. R. v. Chattha, [1997] O.J. No. 646 (C.A.).

[120] Likewise, in cross-examination about what occurred in the trailer, the complainant denied that she could have walked to the bedroom in the trailer in a matter of seconds to secure assistance, when the accused was sitting on the sofa between her and that room. However, she did agree in further cross-examination that she could have gotten around him. The complainant explained that their differences in size deterred her from attempting to leave. She felt like she was “trapped”. I do not see the complainant’s viewpoint as illogical, as by this point in the encounter, she had been made aware that her efforts at ending the accused’s further attentions were being ignored by him. Her change of evidence on this point simply represents a present acknowledgement of a past physical possibility, in the face of the fear that she actually felt at the time in the trailer with the accused.

[121] It was also pointed out, as an illogicality in the evidence of the complainant, that although she had told Goodwin that she could sleep in her van, whose door she could lock, and where she could absolutely be safe, she chose not to do that, and opted for the trailer instead. I see no particular illogicality here. The complainant explained that she needed to sleep, as she had to work the next day, and that the van would not be comfortable for sleeping. Her choice to sleep in the trailer cannot be construed as an invitation or agreement to sexual contact with the accused.

[122] In my view the complainant cannot be faulted as behaving illogically or testifying incredibly because she did not make every desperate effort in the circumstances existing at that time to find a way to flee the Flat Rock, to barricade herself in her vehicle, or to seek help from persons she barely knew. Simply put, the complainant had a right to remain on site unmolested. Victims of abuse will behave idiosyncratically to abuse, and the law does not require a victim of sexual assault to avoid her molester in order for a court to find her credible: R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), at para. 58.

Can she drive, or not?

[123] The complainant was also challenged about inconsistency in her thought process with respect to her ability to drive. In explaining why she did not leave the Flat Rock after the accused groped her breast, the complainant testified that she could not drive after having alcohol, as she was drunk and her licensing status did not permit driving after alcohol consumption. Likewise, at the preliminary, the complainant testified that she felt she had no options to leave when the accused first put his hand down her pants in the trailer, as she could not drive, presumably because of the beer she had finished at the bonfire.

[124] To police, the complainant said that at the end of the assault in the trailer, she let the accused do what he was going to do, as she knew that she had a car and could drive somewhere and get help. At trial, the complainant explained that by that point, the alcohol must have been absorbed, and if not, “the pros outweighed the cons. I’d rather get out of there and be safe than worry about my blood alcohol level.”

[125] In my respectful view, that testimony is not inconsistent or illogical. By this point, everything had changed. The complainant was not simply groped or fondled, she was being raped. Weighed in the balance, some blood alcohol fades to complete insignificance compared to that.

The risks involved and findings of fact

[126] Parts of this argument are based on stereotypical thinking that I am unable to accept. The complainant has given evidence, and also in evidence is a run of text messages between accused and complainant, which do indeed contain many expletives from the complainant.

[127] However, I am unable to draw the conclusion from those expletives that the defence asks me to draw, that the complainant is “vulgar” and unlikely to be viewed by the accused as an easy target. I see no connection between the use of expletives and whether or not a person who uses them would be viewed by the accused as an easy target. I will have more to say about my findings on the accused’s views in what follows.

[128] What I do see from the evidence of the complainant in this case, which I accept as to the core elements of what she suffered that night, is the following explanation concerning the risks faced by the accused. Unlike this court, the accused had a much longer opportunity to acquaint himself with the complainant.

[129] To begin, I find, beyond a reasonable doubt on all the evidence in this case, that the accused groped the complainant’s breast two or three times at the stage on the walk back from the woodpile, in the circumstances described by the complainant. As a prelude to that groping, the accused waxed romantic about the moon and about his feelings for the complainant. The complainant had stopped walking, she looked at the moon, she may have sipped from the accused’s beer. When the accused groped the complainant, she indicated her lack of consent and offered only light resistance, as the assault was unexpected and perpetrated upon her by her boss. The complainant’s excuse for her hesitancy, that she was too young, was brushed aside by the accused, who offered a compliment about her maturity. That initial incident ended when the complainant walked briskly back to the bonfire.

[130] But as must have been observed by the accused, the complainant then did nothing. She continued to laugh at the accused’s jokes, and to smile in the company of the other guards. He was her supervisor, after all. She did not ask for a ride home or tell anyone what the accused had done. She did not call police. She finished her beer. She went to her vehicle for a while, but then returned to the trailer. Here was an indication to this accused that in fact, the complainant was an easy target, in that she remained on the scene, said nothing to anyone about what had just happened to her, sought no assistance, and took no steps to address the accused’s earlier misconduct.

[131] But the complainant did send a text message to Goodwin, and made a self-recording, from which I infer that it was the complainant’s intention not to consent. I see nothing in the evidence before me to suggest that the complainant ever changed her mind about consenting to a sexual encounter of any sort with the accused. However, I am satisfied beyond a reasonable doubt, even in the absence of the evidence of the text message or the self-recording, that the complainant did not consent to any sexual contact with the accused that night, at the stage or in the trailer. This was not because she was not capable of consenting, but rather because she did not consent, and repeatedly expressed her lack of consent. I accept the complainant’s evidence about the core aspects of her account.

[132] In the trailer, it appears from the complainant’s evidence, and I further find, that the accused tested the waters by continually demanding the complainant’s attention, and behaved increasingly aggressively. The complainant denied any need for the accused’s help, but did not shout at him. When he sat down beside her, she moved away and asked him to go. Just as had happened earlier at the stage, the accused’s unwanted touchings caused the complainant to try to move further away or to stop the accused’s hand, or to also try letting her dead weight act as a barrier to his intrusions, but did not result in a cry for help or a slap to the face. As things continued, the complainant found herself gradually put in a position where she began to feel that she had no power to stop the accused at all. She “gave up”. And the accused, on the complainant’s evidence, saw this as an opportunity to do what he wanted.

[133] I find, beyond a reasonable doubt, that the accused put his fingers in the complainant’s vagina more than once, and on one occasion reached in so far as to enable himself to remove her NuvaRing contraceptive, causing the complainant significant pain. He did things to the complainant lying beside her, and with her rolled on top of him and facing him as he lay on the sofa pinning her arms, or from behind her after placing her on her knees. He groped her breasts. He performed oral sex on her. He penetrated her vaginally from behind with his penis, and continued intercourse for an extended period of time, but stopped once or twice, briefly, in answer to pleas from the complainant. This all involved touchings of the complainant, by the accused, of a sexual nature.

[134] I find that the sexual aspect of the incident likely concluded with the accused ejaculating inside the complainant, but I am unable to be satisfied of this aspect beyond a reasonable doubt, given equivocation on the part of the complainant in her answers to the sexual assault nurse and police, and the absence of corroborating evidence from the sexual assault examination.

[135] While this kind of conduct attributed to an accused should defy common sense, it does not. Rather, it once again underscores the lesson that people still fail to learn. “No means no” has become a cultural truism for the denial of consent, but its meaning can be ignored by those who still believe in a doctrine of “implied consent”, or that “no means try harder”. In many respects, this case mirrors the circumstances analyzed in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330. Cases such as that one have taught that control and domination can be exercised in many ways, and that courts must be alive to the actual dynamics between persons involved in an intimate encounter.

[136] Accordingly, I do not find that this aspect of the complainant’s account is illogical. Rather, I find, beyond a reasonable doubt, based on the complainant’s evidence about the accused’s conduct and comportment throughout the night, that the accused had learned at the stage that the complainant’s refusal of consent to unwanted sexual advances did not involve active resistance, and that he chose to take whatever risks were involved to have a sexual encounter with her. He knew that the complainant was not consenting, but he hoped to get her consent as he went, and really did not care if she consented or not. He never did secure the complainant’s consent, but he chose to keep going anyway.

Conclusion

[137] Accordingly, I am satisfied beyond a reasonable doubt that the sole count on the indictment has been made out. A finding of guilt will be registered on the charge of sexual assault.

A.D. KURKE J.

Released: December 13, 2017

CITATION: R. v. R.P., 2017 ONSC 7034

COURT FILE NO.: CR16-0020

DATE: 20171213

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.P.

Reasons for Judgment

A.D. KURKE J.

Released: 20171213