ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-17-4-620
DATE: 20180607
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MAIKEL ALI MIRZADEGAN
Paul M. Alexander, for the Crown
Mitchell Worsoff, for the accused
HEARD: March 19, 21-23, 26-27, 2018
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.
Reasons for Judgment
A. Overview
[1] The accused, Maikel Mirzadegan, is charged with one count of sexual assault. More particularly, it is alleged that, in Toronto, in the early morning hours of October 29, 2016, the accused had sexual intercourse with the complainant without her consent.
[2] On the night of October 28-29, 2016, the complainant and the accused, both university students at the time, met each other, for the first time, at a Halloween-themed fraternity party. As part of his obligations as a fraternity pledge, the accused was responsible for monitoring the door and allowing or denying entrance to the house to all would-be party goers. The complainant and her friend attended at the fraternity that night, but the accused was told not to permit them entry into the house party. He followed those instructions. Thereafter the complainant and her friend spent some time outside the entrance of the house, in the general vicinity of the accused.
[3] The complainant and her friend spent that time socializing with the accused and others, and consuming alcoholic drinks from containers that they had prepared in advance of the festivities. They shared one of their drinks with the accused. Once the fraternity party concluded, the complainant and her friend, and the accused and one of his friends, went to the complainant’s friend’s university residence. After spending a short time there, the complainant and the accused went to the complainant’s university residence. Inside the complainant’s room, there was an act of sexual intercourse involving the accused and the complainant.
[4] According to the complainant, after she and her friend arrived at the fraternity party, began socializing with the accused, and sharing their alcoholic beverage with him, she started feeling increasingly intoxicated and unwell. By the time they got back to her friend’s room, she was feeling quite sick. The accused agreed to walk her safely back to her residence. On the way, she had to stop in a washroom to vomit. When they got back to her residence, her first stop was to the adjoining washroom, where she had to vomit again. She then collapsed, face-down on her bed. The complainant testified, essentially, that the next thing she knew, the accused was on top of her. He ripped off her Halloween costume and had sexual intercourse with her from behind. She did not consent to this act of intercourse, but neither could she prevent it. The Crown contends that this was a sexual assault. The Crown argues that the accused knew that the complainant was not consenting to the sexual intercourse, but took advantage of her significantly impaired condition and simply raped her.
[5] According to the accused, the complainant flirted with him throughout the evening and was clearly attracted to him. While the fraternity party was ongoing, they remained outside. They touched each other as they talked, and the complainant leaned into him when he put his arm around her. When they walked to the complainant’s friend’s residence, they held hands. On their way to the complainant’s room, they stopped in an open, empty classroom. The complainant sat on his lap and they kissed and fondled each other. When the accused suggested that they have sexual intercourse right there, the complainant suggested they wait until they got back to her residence. When they arrived at the complainant’s residence, she invited him onto her bed, where their sexual activity continued. In the heat of passion, the accused ripped her costume open. He then had sexual intercourse with her from behind. The accused testified that the complainant consented to this act of intercourse and appeared to enjoy it. While he had seen her drinking earlier in the night, she seemed fine, and was fully conscious and an active participant in all of their sexual activities. Further, he had not been aware of any earlier sickness or vomiting. The accused agreed, however, that after the conclusion of their sexual intercourse, the complainant asked him to bring her a blue recycling bin, in case she was sick.
[6] For the reasons that follow, I am satisfied beyond a reasonable doubt, based on all of the evidence, that the accused is guilty of the alleged offence of sexual assault.
B. The Applicable Legal Principles
1. The Offence of Sexual Assault
[7] As I have indicated, the accused is charged with sexually assaulting the complainant, contrary to s. 271 of the Criminal Code, R.S.C. 1985, chap. C-46. The law is clear that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised the sexual integrity of the complainant; (2) that the complainant did not consent to this touching; and (3) that the accused knew that the complainant was not consenting to the sexual touching, or was reckless or wilfully blind in relation to whether or not the complainant was consenting. See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97.
2. The Issue of Consent
a. Introduction
[8] There is no doubt that, on the night in question, the complainant and the accused were involved in an act of sexual intercourse. However, their evidence diverges sharply as to how this act of sexual intercourse took place. The complainant testified that she did not consent. The accused testified that she did consent and that he certainly thought she had consented. One of the important issues in this case, accordingly, is whether or not the Crown has established, with the requisite degree of certainty, that the complainant did not consent to the sexual intercourse that admittedly took place, and that the accused knew she did not consent, or was reckless or wilfully blind as to whether or not she was consenting.
b. The Applicable Legal Principles Concerning the Issue of Consent
[9] According to s. 273.1(1) of the Criminal Code, subject to s. 273.1(2) and s. 265(3), the term “consent,” for the purposes of s. 271, means “the voluntary agreement of the complainant to engage in the sexual activity in question.” This provision makes it clear that a complainant may consent to some types of sexual activity but not others. Consent to some types of sexual conduct is not consent to all. In short, without the voluntary agreement of a complainant, any type of sexual activity is non-consensual and unlawful.
[10] According to s. 273.1(2) of the Code, no consent is obtained, for the purposes of s. 271, where: (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. By virtue of s. 273.1(3), this statutory expression of the circumstances in which there is “no consent” is not meant to limit the circumstances in which no consent is obtained.
[11] According to s. 265(3) of the Code, no consent is obtained where the complainant submits or does not resist by reason of: (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.
[12] According to s. 273.2 of the Code, it is not a defence to a charge under s. 271 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where: (a) the accused’s belief arose from the accused’s self-induced intoxication, or recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. As noted by Abella J.A., as she then was, in delivering the judgment of the Court of Appeal for Ontario in R. v. Cornejo (2003), 2003 CanLII 26893 (ON CA), 68 O.R. (3d) 117, 181 C.C.C. (3d) 206, at para. 21, leave denied, [2004] 3 S.C.R. vii, the purpose underlying the enactment of this provision was to ensure “there is clarity on the part of the participants to the consent of the other partner to sexual activity,” and to replace the inappropriate, traditional assumptions that had been made about the legal role of mere “passivity and silence” on the part of a complainant.
[13] In alleged cases of sexual assault there is no defence of “implied consent.” As Major J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Ewanchuk, at para. 31, a trier of fact may come to only one of two possible conclusions – either the complainant consented or not. There is no other option. If the trier of fact accepts the complainant’s testimony that she did not consent, then the Crown has established the necessary absence of consent, no matter how strongly the complainant’s conduct might contradict that claim. While the doctrine of implied consent has been judicially recognized in other contexts, it has no place in the law regarding the offence of sexual assault. Accordingly, there is “no defence of implied consent to sexual assault in Canadian law.” As Major J. stated, at para. 51, any belief that the accused may harbor, that “silence, passivity or ambiguous conduct” on the part of the complainant constitutes consent, is a mistake of law and provides no defence to a charge of sexual assault. This decision “cemented the demise of implied consent” in this context, and “reinforced the necessity of focusing on the subjective state of mind of the complainant to determine if he or she did not consent to the sexual touching” in question. See also R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 17; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at paras. 19-20, 42, 48.
[14] In R. v. A.(J.), 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 31-50, 65-66, the Supreme Court of Canada concluded that these various statutory provisions require that, in order to provide legally effective consent, the complainant must provide present, active, ongoing, conscious consent throughout the course of the sexual activity in question. In short, consent can flow only from a conscious, operating mind. Accordingly, as McLachlin C.J.C. concluded, in delivering the judgment of the majority of the court, at para. 66, “[a]ny sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.” See also R. v. Ashlee, 2006 ABCA 244, 391 A.R. 62, at para. 40, leave denied, [2006] S.C.C.A. No. 415; R. v. Al-Rawi, at paras. 33, 36-371-50.
[15] Given the entirely subjective nature of the complainant’s consent (i.e. voluntary agreement) to the sexual activity in question, the Crown need not establish that the complainant communicated his or her lack of consent to the accused in order to establish the actus reus of the offence of sexual assault. However, an accused may avoid criminal liability for an alleged sexual assault, on the basis of the absence of proof of the necessary mens rea of the offence, if there ultimately remains a reasonable doubt about whether the accused subjectively believed that the complainant had communicated, by words or actions, his or her consent to the sexual activity in question, provided the accused took “reasonable steps” to ascertain whether the complainant was consenting to the sexual activity in question. See R. v. Ewanchuk, at paras. 48-49; R. v. J.A., at para. 37; R. v. Flaviano, 2013 ABCA 219, 309 C.C.C. (3d) 163, at paras. 40-41, affirmed, 2014 SCC 14, [2014] 1 S.C.R. 270; R. v. Al-Rawi, at para. 49; R. v. Barton, 2017 ABCA 216, 354 C.C.C. (3d) 245, at paras. 157, 173-175, 179-183, 209-210, 217-219, 225-226, leave granted, 2018 CarswellAlta 444 (S.C.C.).
3. The Presumption of Innocence and the Burden of Proof on the Crown
[16] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for this alleged offence beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, 22 C.C.C. (3d) 513, at p. 357; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 682-683, 687.
[17] It is also important to recall the nature of the heavy burden of proof on the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.
[18] Further, as the accused testified in this case, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to this alleged offence, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at pp. 757-758. In other words: (1) if I believe the testimony of the accused that he did not commit the alleged offence I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit the alleged offence, if his testimony leaves me with a reasonable doubt as to his guilt regarding this offence, I must find him not guilty; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt regarding the alleged offence, I may only properly find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding this offence. The application of these principles ensures that reaching a verdict does not devolve into a mere credibility contest between the two main witnesses – the complainant and the accused – and ensures that the presumption of innocence and the Crown’s burden of establishing the alleged guilt of the accused beyond a reasonable doubt properly operate. See also R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28.
C. Analysis of the Evidence
1. The Background Facts
[19] The female complainant, CD, is now 21 years of age. She studied psychology at university and now works with children. In the fall of 2016 she was living in a university dormitory-style residence. Her female friend, CM, also attended the same university, and lived in a similar but separate university residence. The accused is now also 21 years old. In the fall of 2016, he was in his second year at the same university, studying English literature, and living off-campus with his mother. He and his friend, Ricardo were “pledging” to join a university fraternity. Prior to the night of October 28-29, 2016, these two men and these two women were strangers to each other.
[20] On the evening of Friday, October 28, 2016, the complainant and her friend went out for dinner at approximately 7:00 p.m., and then returned to CM’s university residence where they dressed up in costumes with the intention of attending a Halloween-style fraternity party. The complainant dressed herself in a “devil” costume. She wore leggings on the bottom half of her body, and a sequined, red, body suit covering her torso (from her shoulders to her upper thighs) and her arms. The complainant also wore a set of devil-style horns on a head band. She had purchased this costume for the Halloween festivities that weekend. She also planned to wear it when she went home for the weekend with her friends. Her friend, CM, dressed herself as the comic book villain, Harley Quinn, popularized by the movie Suicide Squad.
[21] While they were preparing for the party, the two women had some drinks. According to the complainant, she had a couple of mixed drinks of vodka and orange crush, each with a “shot” of vodka. She mixed her own drinks. She also had a “hit” of marihuana from her pipe. The complainant testified that, by the time that they left the residence for the party, she felt “good” and “relaxed,” nothing out of the ordinary and as she would have expected from other occasions when she had consumed similar measures of alcohol and marihuana.
[22] As evidenced from the video recording from the university security cameras, the complainant and her friend left the residence, in their Halloween costumes, at approximately 11:44 p.m. on October 28, 2016. The complainant and her friend had prepared a 500-milliliter bottle with a free-poured mixture of vodka and orange crush, and a second bottle containing a mix of beer and Mike’s Hard Lemonade, to take with them to drink at the fraternity party. Ultimately, the complainant and her friend arrived at the fraternity house party at approximately 12:15 or 12:30 a.m. on Saturday, October 29, 2016.
2. The Testimony of the Complainant
a. Outside the Fraternity Party
[23] When they arrived at the fraternity party, CD and CM tried to enter the house, but the accused, who was “working the door” as “security” as part of his duties as a “pledge” for the fraternity, told them that he could not allow them to immediately enter. Rather, the accused told them about an “after-party” that was due to start at around 2:00 a.m., and he told them to just “wait” outside.
[24] In the result, CD and CM simply stayed outside, talking to the people gathered outside, including the accused, and smoking and drinking. According to the complainant, she and her friend were toying with the idea of going to the “after-party.”
[25] CD and CM offered the accused drinks from one of their prepared bottles. According to CD, the accused took a few slips from the bottle earlier in the night. At different times, the bottle was simply left on the stairs leading up to the porch area by the front entrance. Sometimes the complainant and her friend walked away from their bottle in order to socialize with others. They moved around a bit while they were outside talking.
[26] The complainant testified that when she first arrived at the party she felt “okay,” but after about an hour, during which time she continued to drink from the bottle, she began feeling “sick to [her] stomach” and “nauseous,” as well as “more and more intoxicated” and “dizzy.” The complainant explained that she felt “different,” in the sense that, usually, she would not have felt that way unless she had more to drink than what she had consumed.
[27] According to the complainant, at about the time that she began to feel “nauseous,” a friend of the accused, named “Ricardo,” arrived at the party and joined their conversation. By this point in time, there was no further talk of attending the “after-party.” Indeed, given the way the complainant was feeling, she started to “withdraw from the conversation.” The others began to talk of going back to CM’s university residence. The complainant was indifferent to this suggestion, but she was willing to do whatever the group wanted to do. Ultimately, it was decided that the four of them (i.e. the accused and his friend, and the complainant and her friend) would all go back to CM’s university residence. They left together, walking, sometime between 2:00 and 2:30 a.m. that night.
[28] CM confirmed that, by the time they left the fraternity party, the complainant seemed “intoxicated.” She was slurring her words, speaking in a higher voice, and stumbling as she walked. It was “very clear” that the complainant was intoxicated, and her level of intoxication would have been clear to any observer. CM testified that she was similarly “very intoxicated.”
[29] The complainant testified that, throughout the entire time she was at the fraternity party that night, she had no conversations with anyone, including the accused, about having sex later that night. No one had made any such suggestion to her directly, nor had she engaged in any such conversations that might have even have been indirectly or impliedly about having sex later that night. The complainant agreed, however, that at one point during their time at the party, as it was getting colder, she and the accused were sitting together on the steps, and he put his arm around her shoulder. She took no issue with this, as she thought that he was just being a “gentleman.” The complainant denied that she was actively flirting with the accused during the evening. She also denied that she kissed him, or that he kissed her, or that they held hands with each other.
b. The Walk Back to CM’s University Residence
[30] According to the complainant, as they walked back to CM’s university residence, she had two concerns. First, she was worried about her friend, as she had never before seen CM so intoxicated and “staggering” from the amount of alcohol she had apparently consumed that night. Second, the complainant was increasingly worried about her own “nausea” which seemed to be “getting worse and worse as they walked,” with her “balance” being “thrown off,” seemingly to “one side of [her] body.” The complainant described her own feeling of intoxication and nausea in these circumstances as “abnormal,” given her previous experiences with alcohol and marihuana. The complainant agreed, however, that she was still capable of helping her friend, CM, who seemed to be even “worse off” than her.
[31] The complainant testified that no one was drinking on the walk back to CM’s university residence, and that they were walking back as a group. She did not recall holding hands with anyone, including the accused, during this walk – or earlier at the fraternity party.
c. The Events at CM’s University Residence
[32] As shown by the security camera at the university residence building, this group of four people arrived a CM’s university residence at approximately 2:24 a.m. In accordance with the university protocol, the guests had to be signed into the residence by a campus security guard, and this was done. CM signed-in Ricardo, and the complainant, pretending to be CM’s roommate, AB, signed-in the accused. These sign-in privileges permitted them to be in CM’s room for no more than 30 minutes.
[33] According to CD, she continued to feel “light-headed” and “nauseous” at this point, and these feelings were getting worse. Her plan, when she got to CM’s room was to smoke some marihuana, as she thought that would remedy her feelings of nausea. Indeed, she thought that she would vomit if she did not smoke some marihuana. The accused and Ricardo, however, seemed to be sober.
[34] CM confirmed in her testimony that, by this point in time, when they were heading to her university room, the complainant was, like herself, “obviously drunk.”
[35] CM’s roommate, AB, also testified that, at this point, the complainant was showing the effects of alcohol “a lot more” than when she had observed her earlier in the evening before they left to go out to the fraternity party. More specifically, AB testified that, when CD returned to CM’s room, CD was able to keep herself upright, but she was “not walking great,” and she was “definitely way more intoxicated” than she had seemed earlier.
[36] According to the complainant, at no point during the trip from the fraternity party to her friend’s university residence, did she have any conversation with the accused, express or implied, about the possibility of them having sex together later that night. She was being “friendly” toward him, but she was not “flirting” with him or “coming onto him” physically or sexually.
[37] The complainant testified that, when the four of them arrived in CM’s ground-floor room, she took a single “hit” of marihuana from her pipe, and she did that in the presence of the accused. That was the second inhalation of marihuana she had taken that night. Shortly thereafter, Ricardo and CM arrived in her university room. The complainant testified that her ingestion of marihuana in CM’s room made her feel “a little bit better” for a few minutes.
[38] By that point, however, according to the complainant, her friend’s condition had deteriorated, and CM just wanted to go to bed. As the complainant explained, her original plan that night had been to sleep over at CM’s residence, but after she put CM to bed, she wanted to go back to her own university residence.
[39] The complainant testified that as she was leaving CM’s residence to go to her own residence, she and the accused had an exchange with CM’s female roommate, AB, during which time either the roommate or the complainant asked the accused if he was “okay to walk her [CD] home.” CD understood from this exchange that the accused was going to walk with her back to her university residence to make sure that she got there safely. The complainant explained that she was not completely comfortable with the accused walking her home, given that she had only met him for the first time earlier that night, but she thought it was a better idea than walking home alone at that hour of the night.
[40] The complainant agreed that, at the time, she smoked marihuana recreationally quite regularly, but that she had failed to mention any ingestion of marihuana on the night in question in her statement to the police, taken shortly after the alleged offence.
d. The Walk Home to the Complainant’s Own University Residence
[41] The complainant testified that it was usually about a 10 to 15-minute walk, from the residence where CM lived, to her own university residence. Usually, she walked from one residence to the other largely through a series of other university buildings and walkways. That was the same way that she and the accused travelled that distance on the night in question. A security camera showed that the complainant and the accused left the residence where CM lived at approximately 2:47 a.m.
[42] The complainant testified that the marihuana helped her condition for about 15 minutes, but by the time she and the accused were on their way to her own residence, she was feeling more extremely light headed and dizzy, and “things were starting to spin.” At this point, her vision was a “little blurry,” and she had a sensation of things “going black,” not being able to see everything in front of her. The complainant explained that she had “never felt that way before” regardless of her consumption of alcohol and marihuana.
[43] The complainant testified that, at one point, as she and the accused were walking back to her residence through one of the university buildings, she told the accused that she was “going to be sick,” that she was “going to vomit,” and she went to the washroom and started to throw up. The complainant testified that she was in the washroom for “awhile,” perhaps five or ten minutes, during which time she threw up twice. At one point, she recalled the accused asking her if she was “okay.” She could not recall if she answered. The complainant testified that, after she got sick, “everything got worse,” in terms of the “blackness” of her vision.
[44] According to the complainant, as they walked along, they were not really “interacting” or engaged in conversation. There was certainly no conversation, express or implied, about them having sex that night. She was simply not talking to him, as she was concerned about how she was feeling physically. She testified, however, that she was telling him that she was “sick.” That was the extent of their very limited conversation at the time.
[45] The complainant testified, however, that on one occasion, the accused did kiss her on the lips. There had been no kissing or flirting prior to this. The complainant described how the accused pulled her towards him, with his hands on her face, to kiss her, but she put both of her hands up against his chest to “stop it.” Further, the complainant told him that she was “not feeling well” and that she “needed to go back” to her residence. The complainant denied that there was any other kissing between them that night. The complainant expressed some uncertainty as to exactly when this attempted kissing took place and she agreed that she told the police that it may have happened on the way to CM’s residence. She maintained, however, that she thought it happened on the walk from CM’s residence.
[46] The complainant testified that, at no point in their walk back to her residence, either before or after she vomited in the washroom area, did she and the accused ever go into an empty classroom or lecture theatre.
[47] The complainant testified that her plan was that, when she got back to her residence room, she was going to sleep. She explained that she was feeling tired and she had barely any energy. The vomiting had made her physical symptoms “worse,” not better. She testified that as time passed, her urge to vomit seemed “all consuming,” and she could not think of anything else except for how “bad” she was feeling, and she just wanted to get back to her room. She assumed that, if the accused came into the residence, it was just to make sure she was safe.
e. The Arrival at the Complainant’s University Residence
[48] The security video recording at the complainant’s university residence revealed that the complainant and the accused arrived at the entrance of her residence at approximately 3:11 a.m. The complainant explained that, as shown on the video recording, while they were still outside the residence, the complainant obtained her card key from her backpack, and then used it to enter the residence.
[49] The complainant testified that she did not “sign-in” the accused with the security guard posted in the lobby, in accordance with the governing university protocol, as at that point her feelings of nausea were “all-consuming.” She understood the importance of this procedure and knew that she could lose her “guest privileges” if she did not follow the protocol, but she thought that she would be sick “at any moment.” Accordingly, the complainant ignored the security desk, and used the door to the staircase right across from the security desk, in order to get to her washroom as soon as possible.
[50] The complainant agreed that, viewing the video recording of her entering the residence, she outwardly appeared to be okay, in that she was not visibly staggering or stumbling, or needing any assistance to remain upright. The complainant maintained, however, that she was, at this point, not feeling okay.
[51] The complainant also agreed that, when they entered the lobby of the residence, she did not say goodbye to the accused and thank him for walking her back to her residence. Rather, she walked upstairs to her room on the third floor, in accordance with her usual practice. The complainant maintained, however, that her “plan” was not to have the accused accompany her to her room – her only plan at that point in time was to get to the washroom to vomit.
f. The Complainant’s Attendance in the Washroom
[52] According to the complainant, when she got upstairs to her room, she dropped off her back-pack and went immediately into the adjacent washroom, where she spent the next ten minutes vomiting. As she was going into the washroom, she told the accused that she was “going to be sick again.”
[53] She explained that, in her experience, activities in the washroom seemed “pretty noisy” in her room, so she would have expected anyone in her room to hear her “wretching and vomiting.” The complainant also noted that, at that point, there was little content in her stomach, and she was mostly simply “dry heaving” some “stomach bile.”
[54] According to the complainant, at some point, she may have lost consciousness as she felt an “overwhelming sense of tiredness,” and she later “woke up with her head on the toilet seat” in the washroom.
g. Vomiting into the Blue Bin by the Bed
[55] The complainant testified that, once she had finished throwing up in the washroom, she went back into her room, where she just lay down on her stomach on the bed. She was feeling “very groggy and tired.” She was still fully dressed in her Halloween costume. The lights were on in her room. The accused was near her desk, although she could not recall if he was sitting or standing by that location.
[56] The complainant testified that, as she felt the urge to vomit again, she asked the accused to get her a bin or bucket, and he brought her a small blue bin, that she had been using in her room as trash can, and he put it by her head. At that point, she began to get sick again, into the blue bin the accused had provided to her. She explained that while most of her body was still lying on the bed, her head and shoulders were over the side of the bed, so that she could be sick into the blue bin. The complainant testified that, again, at this point, her vomiting was only producing stomach bile. While this was happening, the accused did not say anything or do anything to help the complainant.
h. The Sexual Activities in the Bedroom
[57] The complainant testified that the next thing she remembered was that the accused asked if he could turn off the lights. She did not respond. She explained that, at that point, she was just consumed with how she was feeling, and how her symptoms seemed to be “getting worse.” She recalled, however, that the lights in the room went off. The accused then asked her if he could lay down beside her. Again, she did not respond. The complainant explained that, at that point, she was simply not able to speak or express herself. She did not recall whether, at that point, the accused got onto the bed. However, the complainant testified that, at that point, she had “no interest” in any kind of physical or sexual contact of any kind. Further, by this point, there had been no previous conversation between her and the accused, expressly or impliedly, about the possibility of them having sex that night. The complainant testified that she had not been flirting with the accused, or “coming onto” him sexually, or in any way trying to give him the impression that she was interested in having sex with him.
[58] According to the complainant, at some point around the time the accused asked her if he could lay down beside her, she lost consciousness. The complainant testified that she awoke to a “tearing” sound. She was still on her stomach on the bed at that point, and she felt a weight or pressure in between her legs, as if there was someone there, on the bed. The complainant explained that, when she heard the tearing sound, she opened her eyes, not sure of what was happening, and she realized that it was her costume that was being torn. She was able to “feel the sensation of it being ripped” and the feeling of the “cool air” on her lower back and buttock area.
[59] With respect to the details of her body suit, the complainant described it as being similar to a “one-piece bathing suit” that you had to “step into” to put on. She explained that the “crotch” piece area of the body suit did not open by means of any “zipper or snap,” but was solid, and made of “pretty thick” fabric. There was a zipper on the back of the body suit that went about half-way down her back from her neck area. The complainant testified that the body suit was designed to be worn over top of a pair of tights. She testified that once the body suit was pulled on over the pair of tights, the tights could not be removed unless the body suit itself was removed again.
[60] When this red body suit was produced in court, the complainant became somewhat emotional, and noted the obvious, significant tearing to the middle area of the lower part of the garment. The complainant testified that this tearing was done by the accused.
[61] The complainant also testified that, to her knowledge, there were no efforts by either herself or by the accused to pull down the zipper located on the back of the body suit. Further, she testified that, if the zipper was not pulled down, the body suit could not be removed as it would simply be too tight to be pulled down over her shoulders. Indeed, the complainant testified that, before she heard the ripping sound of her body suit, she could recall no efforts by anyone to get the body suit off her body. Further, the complainant testified that the tearing motion that she felt was not in a downwards direction from the area of the zipper, but was from the “opposite” direction, moving “upwards” from the bottom of her body suit. The complainant testified that, if she had wanted to get out of her costume, she would have done it herself.
[62] The complainant explained that she was also wearing a pair of cotton tights, with elastic around the waist, as part of her costume that night. She described these tights as not being extremely thin like pantyhose, or as thick as jeans, but rather were more like leggings or pants. She had been wearing these tights under the red body suit. The complainant testified that she believed it was when these tights were torn that she felt the cool sensation on her buttocks and lower back. When these tights were produced in court, the complainant also noted the obvious, significant tearing to the middle area of the buttock/crotch area of this garment. Again, the complainant testified that this tearing was done by the accused.
[63] The complainant testified that after she heard the tearing or ripping of her body suit and leggings, she next realized that the accused had his hands around her hips. He then said words to the effect of “can you move up towards me,” and he tried to pull her upwards toward his pelvis area. The complainant realized that the accused wanted her to move her hips up off the bed and towards him, but all she could do, in her condition, was to try to move her pelvis in the “opposite” direction, down towards the bed. The complainant explained that, at that point, she felt “very incapacitated and exhausted,” and unable to move her arms. At the same time, the complainant started to become “afraid” as she did not know what was going to happen.
[64] The complainant testified that, it was at that point, that the accused penetrated her vaginally with his penis. The complainant testified that, as the accused continued to have sexual intercourse with her from behind, she was saying “Ow,” and trying to move her pelvis back down onto the bed. At this point, the complainant was still positioned “half-off the bed” with her head by the blue bin where she had been sick. The complainant estimated that the accused fully penetrated her in this fashion for 10 to 15 minutes, or perhaps less. The accused did not say anything as this was taking place, and the complainant said only “Ow.” According to the complainant, at this point she was still “dizzy” and “out of it” and not even 100% aware of what was going on. “Ow” was the only thing she was able to say. However, she explained that she was not interested in having sex with the accused and she was not sexually aroused. The complainant did not think that the accused used a condom, did not know if any lubricant was used, and she was not sure whether or not he ejaculated. When it was over, the accused simply got off the bed right away, and asked her if she had any cigarettes. She did not respond and, shortly thereafter, she heard the door close. The accused had left her room.
[65] The complainant testified that while she was unable to tell the accused that she did not consent, in fact, she did not want any of that sexual activity to happen. She explained that she did not consent to that sexual activity, nor did she do or say anything to convey any interest in that sexual activity. The complainant testified that she was not able to say what stopped her from speaking when the accused started to engage in sexual activity with her, but she explained that she had “never felt that way before in [her] life – in that it was “extremely abnormal” to anything that she had felt before. She wanted to speak, and she wanted to move, but she simply could not.
i. The Aftermath
[66] The complainant testified that, after the accused left her room, she thought that she had to get up and lock the door, and she tried to do that, but she could not. Instead, she just fell asleep. According to the complainant, she woke up the next morning around 10:00 a.m., for a few minutes. She was still wearing her ripped Halloween costume, but could not recall why, and she changed into some pajamas. After she vomited again in the bathroom, she went back to bed, where she slept again, until 5:00 p.m.
[67] According to the complainant, when she woke up at about 5:00 p.m. she was in a “panic” and was “confused,” as she had been planning to take the bus home that weekend. While she was cleaning up her room, she picked up the ripped costume and it stopped her “dead in [her] tracks” and it all “started to come back” to her. Seeing the tears in her costume made her realize what had happened.
[68] The complainant testified that, subsequently, she spoke to her friend CM. Then she went to the university security office to complain about what had happened. Later, on October 30, 2016, the complainant went to the police and provided them with a statement outlining these events, and then she went to the hospital for a medical examination and the collection of blood and urine samples. The complainant agreed that she suffered no observable physical injuries as a result of the sexual assault by the accused.
[69] As to the contents of the blue bin that was found in her room, the complainant agreed that it contained a variety of garbage and waste. She also testified, however, that the liquid in the bin appeared to be the liquid that she was vomiting out of her body on the night in question. She explained that, by the time she got to her room, and was using the blue bin, there was no longer any food in her stomach, and that her vomit was a clear liquid bile.
3. The Testimony of the Accused
a. Outside the Fraternity House
[70] The accused testified that during their time together in front of the fraternity house, he socialized with both CD and CM. The accused agreed that he had two or three sips of vodka from the bottle that CD and CM had offered to him, and which was sometimes left on the stairs at the front of the fraternity house. The accused denied that he put anything in the bottle, or even that he had the opportunity to put anything in the bottle.
[71] The accused testified that, at approximately 1:00 or 1:30 a.m., he was sitting on the steps at the front of the house. His friend Ricardo was sitting behind him, on a couch up on the porch. CM was standing in front of him, and the complainant was sitting next to him. While it started as a “group conversation,” he began to speak more to the complainant who was beside him, and CM started to talk more to Ricardo.
[72] The accused testified that during his conversation with CD, the complainant began to lean into him, with her arm on his lap, and they started holding hands. At this point, according to the accused, he put his arm around the complainant. CD also began “flirting” with him and “leading [him] on,” and the accused admitted becoming interested in the complainant as well. The accused testified that he then suggested that they “go back to her place.” The accused explained that this question, by implication, at least to him, suggested that he wanted to go back to her place to have sex. The accused testified that the complainant replied something to the effect of “Yes, but I am with [CM].” According to the accused, the complainant then spoke to CM about leaving with the accused, but CM did not want to be alone that night, so the accused spoke to Ricardo and arranged for him to come back with CM. In the result, the four of them jointly agreed to walk back to CM’s university residence together. According to the accused, while no one had said this expressly, the plan, at least in his mind, was that Ricardo would have sex with CM, and the accused would have sex with the complainant.
[73] The accused testified that while they were at the fraternity party together the complainant seemed “fine.” Indeed, he testified that if he had not seen her drinking, he would not have known that she was drinking. Further, he testified that her condition was “pretty constant” throughout the night, and she never seemed “drunk” at any point, and never had any problem walking. In addition, the complainant’s friend, CM, seemed just a “little bit intoxicated” that night.
b. The Walk Back to CM’s University Residence – And the Events Therein
[74] The accused testified that, as the four of them walked from the fraternity house to CM’s university residence, he held hands or linked arms with the complainant as they walked together, while CM and Ricardo similarly walked together a few steps ahead of them, leading the way. CM confirmed in her testimony that she and Ricardo were holding hands, and she thought that the complainant and the accused were also holding hands, as they all walked back to CM’s university room, but she agreed that she was paying almost no attention to the complainant and the accused.
[75] According to the accused, when they arrived at CM’s residence, they were “signed-in” by the residence security guard and then went to CM’s room. The accused thought that he and the complainant continued to hold hands on their way to CM’s room. The accused agreed, however, that on the video recording of the “sign-in” at the residence, there is no visible physical contact between he and the complainant.
[76] The accused testified that when they arrived in CM’s room, the complainant started smoking some marihuana from a pipe, while CM and Ricardo got on the bed together. Later, after moving an air mattress from the room, and when CM and Ricardo began to get more intimate together on her bed, CM suggested that, perhaps, the complainant and the accused should go back to the complainant’s residence. Subsequently, after the complainant spoke with CM’s roommate, AB, the complainant and the accused left to go back to the complainant’s residence.
c. The Walk Back to the Complainant’s Residence
[77] The accused testified that, as he and the complainant were walking to her residence through some of the university buildings, they went into one of the empty classrooms. The accused explained that, once they were in the classroom, he sat down on a chair, and CD sat down on his lap, straddling him. At this point, according to the accused, he and the complainant began kissing and “making out,” with his hands on her buttocks. The accused testified that, after a few minutes, he suggested that they have sex right in the classroom, but the complainant said that they should “wait until they get back to her place.” At that point, according to the accused, the complainant took his hand and they left the classroom and continued walking back toward the complainant’s residence.
[78] The accused testified that, as they walked through one of the university buildings, the complainant told him that she needed to use the washroom, so they both stopped to use the washrooms. The accused explained that, when he came back out of the men’s washroom, he realized that the complainant was still in the women’s washroom, and he opened the door and asked her if she was “okay.” He denied that he made this inquiry because he believed that she was drunk and obviously unwell in the washroom. He also denied that he heard anything going on inside the washroom. According to the accused, CD replied “yes, I’m fine, I will be out in a minute.” The complainant appeared from the washroom about a minute later and they then continued on their way to the complainant’s residence.
[79] The accused testified that he never had any concern for the well-being of the complainant up until that point in the evening. He explained that CD never told him that she was not feeling well. He disagreed with the Crown’s suggestion that, at that point, the complainant was “obviously unwell.” To him, the complainant was not visibly different from the way she had appeared earlier in the night.
[80] According to the accused, just before they went into the residence building, they talked about getting inside. The complainant told him that she had no further “sign-in privileges” so they would have to just walk by security, hoping that they would not be noticed, and that they should take the stairs instead of the elevator. The accused testified that this was what they did – they walked by the security desk without being stopped, and they held hands as they walked up the three flights of stairs to get to her room.
[81] The accused agreed that, given their discussion outside the residence about how they had to try to sneak by the security guard, there was no reason for him to get his wallet out of his pocket. However, he agreed that the video recording of their entrance into the complainant’s residence showed that he had his wallet in his hand, and that he had his identification out of his wallet.
d. The Events in the Complainant’s Room – The Sexual Activities
[82] According to the accused, once they were inside the complainant’s room, they started “making out almost right away.” There was no preliminary conversation between them. The accused explained that they were hugging and groping each other while standing up for a few minutes. The complainant then asked the accused to “unzip” her “dress” or “outfit.” The accused testified that, after he unzipped her costume at the back, the complainant went to use the washroom. While she was in the washroom, the accused waited for her in the chair by her desk. According to the accused, he did not hear CD in the washroom, and had “no concerns” over the complainant’s “well-being.” He thought that, at that time, CD was still “completely in control of herself.”
[83] The accused testified that when the complainant came out of the washroom, after a few minutes, still fully clothed, she lay down on the bed. At that point, the accused asked the complainant whether he should turn off the lights, and whether he could lie down on the bed with her. When the complainant replied “yes,” the accused turned off the lights and got onto the bed with the complainant. At that point, the room was in darkness.
[84] According to the accused, at that point, he and the complainant started “making out” again. The accused explained that he was touching parts of her body, including her buttocks, while the complainant was touching him around his genitals. After a few minutes of “making out” in this fashion, the complainant turned around, signaling to him to “take off her outfit.” The accused explained, however, that the outfit was “really tight to her body,” and the zipper did not “go down any more,” so he just decided, “in the heat of the moment,” to rip the outfit open. Accordingly, he ripped the outfit open and apart, “from the bottom,” by her buttocks. The accused admitted that this was a “stupid thing to do” and testified that he was “sorry that he did that,” but he denied that he was “an animal.” The accused admitted that he must have ripped not only the body suit, which was admittedly a substantial fabric, but also the leggings, although he remembered only one big gathering of fabric and one smooth tearing motion. According to the accused, the complainant said nothing about this tearing of her clothing, although he admitted that, if the complainant had wanted to remove her clothing, she could easily have removed her clothing.
[85] The accused testified that, after he ripped her outfit apart, he had sexual intercourse with the complainant from behind. He explained that she was on her knees and forearms while this happened. According to the accused, the complainant was “moaning” and she appeared to be enjoying it. Beyond that, however, CD did not say anything to him, or complain to him about anything. She did not say “no” or “stop.” The accused stated that, if the complainant had indicated to him, by words or actions, she did not want to have sexual intercourse with him, he would not have had sexual intercourse with her. The accused testified that he did not use any “protection.” He explained that he told the complainant that he would “pull out” and that he was “clean” and, according to the accused, the complainant “did not have any problem with that.” In the result, the accused “pulled out” and ejaculated.
[86] The accused testified that, when he was finished, he got up off the bed and put on his pants. He still wanted to go back to the fraternity house for the “after-party.” Before he left, however, he asked CD if there was anything he could do for her before he left. In response, the complainant asked for a bucket. The accused estimated that the complainant’s request for a bucket happened within a minute of the conclusion of their sexual intercourse. The accused then turned on the light, got the recycling blue bin, and put it beside her bed. The accused explained that, when the complainant asked him for the bucket, he probably thought, or assumed, that “she was sick” or that “she may have wanted to throw up in it,” but that she never told him at any point that she was sick, or that she wanted to vomit. The accused testified that, if she had told him she was feeling sick, he would not have had sex with her. Further, the accused testified that, while he smelled alcohol on the complainant, he never smelled vomit on her breath or on her clothes.
[87] The accused testified that he then asked CD for a cigarette, and the complainant told him that he could get one from her purse. The accused then took one of her cigarettes from her purse and left her room and ultimately made his way back to the fraternity “after-party.”
[88] As to the complainant’s level of intoxication that night, the accused testified that his impression was that she was “a little bit intoxicated,” but that it was “nothing out of the ordinary,” and that she seemed “stable” and “well capable” of speaking and making decisions.
4. Conclusions Regarding the Evidence
a. Introduction
[89] As to the detailed narrative of the sexual activity that took place between the accused and the complainant in her university bedroom in the early morning hours of October 29, 2016, I find that the complainant is telling the truth about what happened, and that the evidence of the accused is simply untrue. I am satisfied beyond any reasonable doubt that the accused committed the offence of sexual assault against the complainant – he forcibly had sexual intercourse with her knowing full well that he did not have her consent to do so.
[90] In other words, applying the three-pronged legal standard articulated by the Supreme Court of Canada in R. v. W.(D.): (1) I do not believe or accept the exculpatory testimony of the accused that he honestly believed that the complainant was consenting to the sexual intercourse; (2) the exculpatory testimony of the accused does not leave me with any reasonable doubt as to his guilt; and (3) based on the testimony that I do accept – which includes the testimony of the complainant – I am satisfied beyond a reasonable doubt as to the guilt of the accused in relation to the charge of sexual assault.
b. The Truthful Testimony of the Complainant
[91] I found the complainant to be an honest, candid and truthful witness. She was directly responsive to all questions, whether in examination-in-chief or cross-examination, no matter how uncomfortable or personal those questions may have been. The complainant provided logical, sensible explanations for the few small inconsistencies in her testimony. Her account of the night of October 28-29, 2016 was logical, reasonable and consistent with the other evidence in the case – except for the testimony of the accused.
[92] The complainant’s memory of some of the events on the evening of October 28-29, 2016, was admittedly “pretty foggy” or “cloudy.” I found this unsurprising. She admitted that she had attended a university fraternity party that night and had consumed alcohol and had ingested marihuana at different points during the evening. She agreed that she felt very intoxicated. Her substantial level of intoxication was confirmed by the other witnesses who observed her that night – again, except for the testimony of accused.
[93] In her testimony, the complainant also described other physical symptoms that she suffered on the night in question, including nausea, vomiting, loss of consciousness, and an inability to speak or move effectively. I accept her evidence that she experienced all of these symptoms. Of course, these most unpleasant and debilitating physical symptoms would have impacted on the complainant’s ability to consent to sexual activity and, most assuredly, on her interest in any potential sexual activity.
[94] By the time blood and urine samples were taken from the complainant at the hospital, more than 24 hours had passed since the act of sexual intercourse. Accordingly, testing for the presence of gamma hydroxybutyrate (GHB) was not conducted, as this more commonly called “date-rape” drug degrades and dissipates from the body more quickly – usually within a period of approximately 12 hours. However, first in cross-examination and subsequently in re-examination, the complainant confirmed, when referred to the toxicology report of the forensic scientist, Rachelle Wallage, that on the night in question she experienced all of the typical scientifically recognized effects of GHB administration, including “sedation, loss of consciousness, amnesia, and nausea and vomiting.” The complainant testified that she did not know what GHB was, and she did not knowingly ingest any GHB on the night in question. She also testified, however, that when she was periodically consuming her pre-mixed alcoholic drink from her bottle at the fraternity party, there were opportunities for her drink to be drugged, as it was not always in her possession.
[95] I need not draw any final conclusion as to whether the accused (or anyone else), in fact, surreptitiously drugged the complainant’s bottle with GHB. I note only that the complainant’s more unusual physical symptoms on the night in question were consistent with GHB administration, and the presence of those symptoms do not in any way cause me to doubt the truthfulness of her account of the details of the events on the night in question. Contrary to the submissions of defence counsel, I do not find it in any way unbelievable that the complainant experienced periods of unconsciousness during the night. Indeed, I accept her evidence that she experienced bouts of unconsciousness: (1) when she was in the washroom back at her university residence; and (2) just before the accused ripped her Halloween costume open and began to have sexual intercourse with her.
[96] I note that the testimony of the complainant’s friend, CM, confirms the testimony of the complainant regarding these unusual physical symptoms as she was also periodically drinking from the same pre-mixed bottle at the fraternity party, and she testified that she also experienced very similar, unprecedented, physical conditions (i.e. extreme and unanticipated feelings of intoxication, vomiting, and periods of physical immobility).
[97] In my view, the complainant’s ripped Halloween costume is an especially important aspect of the evidence in this case and confirms her testimony that she did not consent to the sexual intercourse that was forced upon her by the accused.
[98] When the complainant returned to her bedroom after attending inside her washroom, she lay down on the bed, face down, fully clothed. If she had not been significantly incapacitated by the ingestion of alcohol and drugs and had wanted to engage in sexual intercourse with the accused, she could have easily removed her Halloween costume. Indeed, given the nature of her costume, the removal of her costume was absolutely necessary in order for an act of sexual intercourse to be able to take place between them. Returning to the bedroom fully clothed in a costume that physically prevented an act of sexual intercourse was no indication to the accused that the complainant consented to having sexual intercourse with him.
[99] Further, I do not believe that the complainant started “making out” with the accused after she had returned from vomiting in the washroom. Indeed, I find that she continued to vomit into the blue bin upon her return to the bedroom. Nor do I believe that the complainant gave the accused any signal, verbal or physical, to remove any of her clothing. Of course, had the complainant been capable of consenting to sexual intercourse, and been, in fact, consenting to sexual intercourse with the accused, it would have been easy enough for the complainant to have removed her own costume or, at a minimum, helped the accused to remove her costume, so as to allow the sexual intercourse to take place. The accused admitted this. Instead, the complainant did neither. Indeed, I accept her evidence that, when she returned to the bedroom, after vomiting in the washroom, and vomiting again into the blue bin in her room, she simply lay face down on the bed until she was overcome by another bout of unconsciousness.
[100] The accused admittedly ripped holes in the complainant’s Halloween costume so that he could gain physical access to her vaginal area, so that he could have sexual intercourse with her. Given the nature of the fabrics involved, and the obvious physical damage caused to the complainant’s body suit and her leggings, this required considerable strength, and an equally considerable degree of force, on the part of the accused. Such force would have, of course, been wholly unnecessary if the complainant had been consenting to sexual intercourse. Ripping the complainant’s Halloween costume in this fashion was only necessary, I find, because the accused could not otherwise gain access to the vaginal area of the inert and unconscious complainant.
[101] Indeed, I find as a fact that the accused ripped the complainant’s Halloween costume in this forceful fashion not because they were in any way gripped by the “heat of passion,” but rather only because the accused knew that the complainant was either incapable of consenting, or not in fact consenting to sexual intercourse, and he was determined to have sexual intercourse with her in any event, and needed to rip open her costume in order to accomplish his objective.
[102] Another factor that, in my view, supports the credibility of the complainant is that the complainant has no apparent motive to invent a false allegation of sexual assault against the accused. I appreciate that the accused has no onus to prove that the complainant has a motive to lie. I also appreciate that the absence of any apparent motive to fabricate does not necessarily mean that a complainant does not, in fact, have some hidden motive to fabricate her allegations and, therefore, must be telling the truth. See R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 32-54; R. v. B.(R.W.) (1993), 24 B.C.A.C. 1, [1993] B.C.J. No. 758 (C.A.), at para. 28.
[103] In the present case, however, there is not the slightest suggestion of any potential motive to lie on the part of the complainant. Prior to the night in question, the complainant and the accused were total strangers to each other. They had no prior relationship or history together that might potentially have created some animus on the part of the complainant against the accused. Further, there is no other evidence from which it might reasonably be suggested, or concluded, that there might be some other potential motive for the complainant to invent a false allegation of sexual assault against the accused.
[104] Defence counsel argued that there were a “plethora” of reasons why the complainant might have fabricated her evidence, and he speculated that, perhaps, she felt “used and cheap after the fact.” I disagree. I must say that, having carefully watched the complainant as she testified in this case, I did not perceive her evidence to be at all motivated by any malice against the accused, or by any regret over a hasty and less than romantic sexual misadventure. Rather, she struck me as a young woman who was in court to truthfully explain how she had been raped by an opportunistic near-stranger who had taken advantage of her while she was in a near-unconscious state.
[105] In any event, the absence of any apparent motive to lie is simply one factor that may appropriately be considered in assessing the credibility of any witness. See R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-110; R. v. LeBrocq, 2011 ONCA 405, 87 C.R. (6th) 85, at paras. 18-21; R. v. D.C., 2017 ONCA 483, [2017] O.J. No. 3138, at para. 8; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 89-98. As Doherty J.A. stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121:
What must be avoided … is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [emphasis added]
[106] In summary, I believe and accept the testimony of the complainant. She was an honest, forthright and truthful witness. She candidly explained the important details of the events of the night of October 28-29, 2016, to the best of her ability given her level of intoxication that night, and the other physical symptoms she experienced that night from the combination of alcohol and drugs. Her degree of intoxication, as well as her other physical symptoms, were confirmed by the testimony of other witnesses in the case. Her ripped Halloween costume also confirms the truthfulness of her evidence as to how the act of sexual intercourse took place. Further, the complainant has no apparent motive to falsely implicate the accused in an offence of sexual assault. In short, I found her testimony compelling.
c. The Untruthful Account by the Accused
[107] I reject the testimony of the accused that when he engaged in sexual intercourse with the complainant he honestly believed that she was consenting to the activity. Moreover, his testimony does not leave me with any reasonable doubt as to his guilt in relation to this offence.
[108] The accused testified that the complainant always seemed “fine” or “okay” and quite capable of providing her consent to sexual activity. Indeed, he testified that, if he had not seen the complainant drinking, he would not have known that she had been drinking. All of the other evidence in this case proves the contrary. The complainant explained in detail how she felt throughout the early morning hours of October 29, 2016, and how she had repeatedly vomited. The accused could not have helped but be aware of her ongoing sickness and vomiting. She told him she was sick, and on one occasion, in the complainant’s room, she vomited right in front of him. Most importantly, the complainant testified how she felt at the time the accused had sexual intercourse with her. Based upon her evidence, which I accept, it is clear that the complainant was hardly in a position to consent to sexual activity. Her obvious and severe level of intoxication, as a result of her ingestion of a combination of alcohol and drugs, were apparent to her friend, CM, and to her friend’s roommate, AB. I accept their evidence in this regard, just as I accept the evidence of the complainant. Further, the clear, liquid bile in the blue bin by the complainant’s bed supports her testimony that she had been vomiting her stomach contents earlier in the evening. In his evidence to the contrary, I find that the accused was simply being untruthful. The complainant was not “okay” or “fine.” Rather, she was severely intoxicated, repeatedly vomiting, and virtually incapable of consenting to sexual activity – and the accused knew it.
[109] I reject as untruthful the evidence of the accused that, on their way back to the complainant’s residence, he and the complainant stopped in an empty classroom and began “making out” together, and that when the accused suggested they have sexual intercourse right there in the class room, the complainant suggested that they “wait until they get back to her place.” I find that this simply did not happen and was an invention by the accused. The complainant denied ever stopping with the accused in any classroom on the way back to her residence, and she repeatedly denied that she ever engaged in any conversation or discussion with the accused, at any point during the night, that suggested, even impliedly, that they might have sexual intercourse later that night, in her university room or anywhere else. I accept the complainant’s evidence in this regard. The only stop that the complainant and the accused made on their way back to the complainant’s residence was at the washroom, where the complainant vomited.
[110] I also find the key testimony of the accused, as to how the complainant’s costume came to be torn just prior to the act of sexual intercourse, to be untruthful and manufactured.
[111] As I have indicated, the accused testified that after they had been “making out” on the bed for a few minutes, the complainant turned around, signaling to him to “take off her outfit.” When he could not get the zipper of her body suit down sufficiently, he just decided, “in the heat of the moment,” to rip the outfit open. Accordingly, as he recalled, in one smooth tearing motion, he ripped the outfit open and apart, “from the bottom,” by her buttocks. In his explanatory testimony, the accused then spontaneously admitted that this was a “stupid thing to do” and said that he was “sorry that he did that,” but he denied that he was “an animal.” This portion of his testimony flowed from the accused very quickly, as if by rote – it seemed to be the recitation of elements of a story he had to deliver when presented with the opportunity to do so. I did not believe it.
[112] Further, aspects of this portion of his testimony are incoherent and inherently implausible. First, at no time did the accused explain how it was that the complainant managed to “signal” to him that he should remove her clothes. Second, the accused’s “in the heat of passion” comment really does not explain how, when somehow signaled to remove the complainant’s costume, the accused decided to forcefully rip it apart in the manner he did after only experiencing a moment’s difficulty with the zipper and little, if any, collective effort to simply remove the costume undamaged. Third, given the extensive nature of the observable damage to the complainant’s costume (i.e. her body suit and her leggings), this simply could not have been accomplished in a single, smooth tearing motion. Fourth, the speedy acknowledgement by the accused that it was a “stupid thing to do” and his accompanying apology, as it unfolded in court, seemed contrived and insincere. As I have indicated, I simply did not believe this critical aspect of his evidence.
[113] As I have already mentioned, pursuant to s. 273.2 of the Criminal Code, it is no defence to a charge of sexual assault that the accused believed that the complainant consented to the sexual activity in question where the accused failed to take “reasonable steps” to ascertain that the complainant was consenting. This provision exists to ensure “there is clarity on the part of the participants to the consent of the other partner to sexual activity,” and to replace the inappropriate, traditional assumptions that had been made about the legal role of mere “passivity and silence” on the part of a complainant. See R. v. Cornejo, at para. 21. In my view, the Crown has established, with the requisite degree of certainty, that the accused failed to take any “reasonable steps” to try to ascertain whether the complainant consented to the act of sexual intercourse or not. See R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274, at paras. 51-55; R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133, at para. 28. In cases involving allegations of sexual assault, there is simply no defence of “implied consent.” See R. v. Ewanchuk, at paras. 31, 41-42, 47-49, 51; R. v. A.(J.), at paras. 3, 31-50, 65-66; R. v. Al-Rawi, at paras. 19-20, 42, 48-49; R. v. Flaviano, at paras. 40-41; 014 SCC 14; R. v. Barton, at paras. 157, 173-175, 179-183, 209-210, 217-219, 225-226.
[114] The accused was not entitled to assume that the complainant consented to have sexual intercourse with him in her room simply because: (1) they spent much of the night together at a fraternity party; (2) the complainant was wearing a “devil” Halloween costume that night; (3) the complainant had been drinking and smoking marihuana that night; (4) he put his arm around her shoulder at the fraternity party; (5) they may have held hands as they walked together at some point during the evening; (6) he walked her safely home to her university residence; and/or (7) he believed that she had been “leading him on” – even if consensual sexual intercourse was what the accused hoped or expected would happen at the end of the evening.
[115] There is another aspect of the testimony of the accused that I find to be untruthful. The accused testified that, just before they arrived at the complainant’s university residence, the complainant advised him that she had no more “sign-in privileges” so they would have to sneak by the security guard. However, the video recording of them entering the university residence clearly shows that the accused had his wallet and identification in his hands. The accused agreed that, if he had just been told by the complainant that they were going to try to sneak pass the security guard, there was no reason for him to get his wallet and identification out of his pocket. I am driven to conclude that the accused manufactured this aspect of his testimony concerning his alleged conversation with the complainant just outside the university residence. I note that this same portion of the video recording appears to confirm the testimony of the complainant that, when they arrived at the residence, she obtained her card key for the residence from her backpack.
[116] Finally, I also reject the evidence of the accused because I have no hesitation accepting the truthful testimony of the complainant, which is inconsistent with the evidence of the accused. The law is clear that a conviction of an accused in a sexual assault case may, in appropriate circumstances, be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. See R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, 218 O.A.C. 37 (C.A.), at para. 53, leave denied, [2007] 1 S.C.R. x; R. v. M. (T.), 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68. In my view, this is one of those cases.
D. Conclusion
[117] In the result, as I am convinced of the guilt of the accused beyond any reasonable doubt, I find the accused guilty of the charge of sexual assault.
Kenneth L. Campbell J.
Released: June 7, 2018
COURT FILE NO.: CR-17-4-620
DATE: 20180607
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
MAIKEL ALI MIRZADEGAN
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: June 7, 2018