OSHAWA COURT FILE NO.: CR-17-14461 DATE: 20181025 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – T.J. Defendant
Counsel: Fred Stephens, for the Crown Alan Risen, for the Defendant
HEARD: September 24-28, October 1, 5 and 25, 2018
PUBLICATION RESTRICTION NOTICE Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person.
REASONS FOR DECISION
DE SA J.:
Overview
[1] The accused is charged with one count of sexual assault. The allegations relate to an incident involving the complainant, R.P. The Crown alleges that the accused, T.J., sexually assaulted R.P. on the evening of December 19, 2015 after returning from a party in Blackstock.
[2] The primary evidence of the Crown came from the complainant, R.P. T.H., another attendee at the party, also testified for the Crown. The nurse examiner, and the CFS report confirm the accused’s semen was located in the complainant’s vagina.
[3] The accused, T.J., testified.
[4] After hearing the evidence and submissions, I reserved my decision. These are my Reasons.
R.P.
[5] R.P. testified that she first met T.J. in Grade 9 at Uxbridge Secondary School. According to R.P., they were always just friends. They were never romantic. T.J. had expressed interest in her romantically, but she was never interested.
Evening of December 19, 2015
[6] At the time of the incident, both she and T.J. were in Grade 13. She was 18 years old.
[7] R.P. was working during the day on December 19, 2015. Her mom picked her up from Zehrs and took her home. Between 4:00 p.m. and 5:30 p.m., she had a couple of glasses of wine with her sister. After dinner, she had two or three more glasses of wine. R.P. testified that she wasn’t intoxicated, but she was feeling the alcohol.
[8] R.P. had been texting T.J. during dinner to figure out what they were going to do that evening. They decided to go to a party in Blackstock. T.J. picked her up from her parents’ house at around 9:30 p.m. and they went back to T.J.’s place. She brought clothes with her and was planning on spending the night at T.J.’s house. She planned to leave from T.J.’s place the next morning to go to work.
[9] At 10:30 p.m., J.G., a mutual friend, picked both T.J. and R.P. up from T.J.’s place. J.G. then picked up a few other girls (G., A., and T.H.). Both T.J. and R.P. were sitting in the front with J.G. and the other girls were sitting in the back.
[10] According to R.P., they were all in a party mood on the drive to Blackstock. She had a sip of G.’s Vodka while in the car, but she was disappointed that she didn’t bring any alcohol of her own. She recalls looking at the clock while in J.G.’s truck and it was just after 11:00 p.m. According to R.P., that was her last memory of the evening. She has no memory of getting to Blackstock. She does not remember going in to the party. She does not remember returning to T.J.’s place.
[11] The next thing R.P. remembers is seeing T.J. on top of her sometime during the evening. She was on her back and her legs were opened. T.J. was between her legs. She felt pain in her vagina. She believes they were having sex. She recalls closing her eyes again and lay still hoping he would stop. She turned her head to the side.
The morning of December 20, 2015
[12] When R.P. woke up in the morning, she had no pants on. She got up and asked T.J. what happened. She asked how she got so drunk. T.J. said she had some of his Captain Morgan when they got back from the party. T.J. said that he took her clothes off because she had puke on them.
[13] She was very upset at T.J. She knew they had sex. She was sore in her vaginal area and her thighs were tender. It was sore to walk. She would have never knowingly consented to having sex with T.J. and he would know that. She had been dating J..
[14] She told T.J. that she didn’t ask for this. He knew she was with J. T.J. asked R.P. if she was saying he raped her. She said “No”. She put on her shirt, and asked T.J. for some pants.
[15] Before leaving, she asked T.J. for her things which were in his car, but he couldn’t find his keys. She said she would message him for her things later. She wanted to leave.
Reporting the Incident on December 20, 2015
[16] R.P. testified that after leaving T.J.’s place, she went over to a friend’s house (A.J.’s house) to get some advice about what to do. A.J. told her to go the hospital. She went to Uxbridge Hospital and they suggested that she go to the Oshawa Hospital to get a rape kit done.
[17] She went home from Uxbridge Hospital and her mother encouraged her to go to the police. They made arrangements for an officer to attend so R.P. could give a statement.
[18] Officer Natalie Waters came to the house at 12:17 p.m. and spoke with R.P. They were sitting in the living room and she told her what happened. As she was speaking with Officer Waters, T.J. texted her asking her “What did you tell A.J.?” R.P. testified that she blocked T.J. after this.
[19] After finishing her statement, R.P. went to Oshawa to get the rape kit done. First she went to the Emergency Department, and they directed her to the Domestic Assault/Sexual Assault Centre for Violence. She was examined there.
Examination by Nurse Examiner
[20] On December 20, 2015, swabs were taken from the inside and outside of complainant’s vagina. She was also given a complete body inspection including examining 1) trunk; 2) limbs; 3) head; 4) neck; 5) internal and external vagina.
[21] There was moderate swelling on the left labia minora with pain. There was no injury to the labia majora or the posterior fourchette. No injuries were observed in the introitus (opening of the vagina). No bruising or injuries to the body were observed.
CFS Report
[22] The swabs taken from the complainant’s vagina on December 20, 2015 were submitted for testing. It was confirmed that T.J.’s semen was detected on the vaginal and external genitalia swabs.
[23] The testing could not confirm how T.J.’s semen entered the vagina, or the quantity of the ejaculate deposited.
[24] The swelling and the DNA located in the complainant’s vaginal area could be consistent with either penile penetration or digital penetration.
T.H.
[25] T.H. was called by the Crown as a witness to the events of December 19, 2015.
[26] T.H. testified that on December 19, 2015, they were going to the party in Blackstock. When J.G. arrived, he, R.P. and T.J. were in the front of the truck. She, G., and A. got into the back.
[27] T.H. recalled that R.P. was very intoxicated when they arrived. T.H. recalls that R.P. was drinking from a bottle of strawberry wine. She was slurring words, but she was understandable. T.H. recalls that R.P. was being very sociable. According to T.H., R.P. was happy and clearly in a party mood. She was “giddy” but still conversant. T.H. recalls that R.P. was talking and having fun on the way to Blackstock.
[28] On the ride to Blackstock, T.H. recalls that J.G. had to pull over one time so R.P. could throw up. She was not sure if R.P. actually did throw up. But she recalled that R.P. got out of the truck and got back in. R.P. seemed alright when she got back in.
[29] After getting to the party, J.G. had to leave. J.G. ended up leaving with T.J. and R.P. T.J. was supposed to come back and pick them up, but he never ended up coming back. T.J. texted G. later that evening and said he couldn’t find his keys.
[30] She acknowledged in her evidence that her actual recollection of events was not great. She acknowledged that she had been drinking that evening. She was intoxicated, but not as bad as R.P.
T.J.’s Statement to Police
[31] On February 3, 2016, T.J. gave a statement to police. Officer Ahee conducted the interview. This statement was admitted on consent. The defence has conceded its voluntariness.
[32] In his statement, T.J. described the events of December 19, 2015 leading up to the alleged assault. According to T.J., R.P. had been drinking her wine at his place before the party. She continued drinking in the car. He himself had a mickey of vodka.
[33] After they got back from the party, he couldn’t find his keys. He came back to the room and told R.P. She started comforting him. They started making out. According to T.J., they were just touching each other down there under the clothes. After that, they just stopped. He got off of her because he thought it was weird. They were friends. He said he doesn’t believe she had anything else to drink when they got back.
[34] In his statement, T.J. told the police that was all that happened. He denied that he and R.P. had sex.
T.J.’s Evidence at Trial
[35] T.J. is 20 years old and was 18 years old at the time of the allegations.
[36] T.J. testified that he did not have a romantic relationship with R.P. They were only friends. According to T.J., he never had romantic feelings towards her. They were good friends and they would tell each other everything.
[37] On December 19, 2015, T.J. picked R.P. up from her house. When she came out to the car, she had 2 bags with her. She brought some overnight clothes because she was staying over. According to T.J., R.P. also brought wine with her. He could see the bottle sticking out from one of her bags.
[38] R.P. looked normal when he picked her up. She didn’t look drunk. After they got to his place, he started texting people looking for something to do. T.J. recalls that R.P. was drinking at his place. According to T.J., R.P. had 2 shot glasses of wine at his place.
[39] G. (T.J.’s ex-girlfriened) texted him about a party in Blackstock. Both he and R.P. decided to go. T.J. wanted to drink so J.G. agreed to drive.
[40] J.G. came and picked them up. T.J. brought a mickey of vodka and R.P. brought her bottle of wine. R.P. was sitting in between J.G. and T.J. on the ride to Blackstock. They picked up the other girls who were about 5 minutes away. After picking up the girls, they drove to Blackstock which was a 40 minute drive.
[41] Both R.P. and T.J. were drinking on the way. T.J. drank about half of the mickey. He wasn’t intoxicated, but he wouldn’t be able to drive. R.P. was in a good mood. She was talking and acting normal. T.J. remembers that R.P. asked J.G. to pull over to throw up at some point.
[42] When they got to the party, they went in for a short while and then J.G. said he had to go home. T.J. told R.P. he was going to leave. R.P. decided to leave with him.
[43] According to T.J., R.P. was still drinking on the ride back as was T.J. When they got back at about 12:30 a.m., they both went up to his room. They were both tipsy, but she walked up on her own.
[44] T.J.’s phone was dead and he went to get his charger from his car. When he went to his car, he realized that he didn’t have his car key. He still had the lanyard but not the key. He was pretty upset. T.J. testified that he came back to the room and he was freaking out. He put the light on in the room. R.P. was still awake.
[45] R.P. started comforting him and rubbing his back. They started kissing. They were both kissing. She was fully conscious. She started stroking his penis and he started touching her as well. Initially he was touching her over her clothes and then he took her pants off.
[46] She touched his penis until he ejaculated. He was fingering her vagina. According to T.J., she was definitely conscious and completely into it. At some point, he felt it was weird because they were friends. He got off her, and they both went to sleep. The sexual contact took place for only about 5 minutes. He recalls that he touched the ejaculate during the encounter. He believes that this must be how she had the semen inside of her.
Morning of December 20, 2015
[47] According to T.J., R.P. woke up the next morning and said “Oh no, what should I tell J.”. T.J. said he wouldn’t say anything. She looked panicked. They lay in bed for 45 minutes. She went to the washroom. She was on her phone for a bit and then she said she was going to A.J.’s.
[48] She said she would message him to get her stuff back. He tried to text her but didn’t receive a response.
[49] According to T.J., the sexual encounter was consensual. She was expressing her consent by touching him. She was initiating a lot of the touching. She was kissing him. She wasn’t objecting to being touched. He was not sure what else he had to do in that situation to ensure she was consenting.
[50] T.J. denies having intercourse. He must have touched the semen when he was fingering her. He has a specific recollection of rubbing his hand through it.
Analysis
The Elements of Sexual Assault
[51] The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two elements are objective. The third element of the actus reus is subjective and determined by reference to the complainant’s state of mind towards the touch at the time it occurred; see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38; aff’d , [1997] 1 S.C.R. 304 (SCC), R. v. Park, [1995] 2 S.C.R. 836 (SCC), at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513, and R. v. Ewanchuk, [1999] 1 S.C.R. 330, paras. 25 and 26. The accused’s perception of the complainant’s state of mind is not relevant at this stage of the analysis. As explained at para. 28 of Ewanchuk:
Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England(4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal. [Emphasis added.]
[52] Sexual assault is a crime of general intent and that the Crown does not have to prove a specific intent with respect to the sexual nature of the assault. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. See R. v. Daviault, [1994] 3 S.C.R. 63.
[53] The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch a complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park, supra, at para. 39.
Capacity to Consent (Actus Reus)
[54] On the issue of consent, a person has the requisite capacity where he/she has the ability to understand and agree (or not agree) to engage in the sexual activity in question. This is not a cognitively complex task. As Rosenberg J.A. explained in R. v. Jensen, supra, “a minimal capacity is required to consent (or withhold her consent) to sexual activity”.
[55] Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary, in some cases (R. v. Faulkner (1997), 120 C.C.C. (3d) 377 (Ont. C.A.)).
[56] Mere drunkenness, however, is not the equivalent of incapacity, nor is alcohol-induced decision making, memory loss, loss of inhibition or self-control. R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.); R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.); R. v. Cedeno (2005), 2005 ONCJ 91, 195 C.C.C. (3d) 468 at 475 (O.C.J.); R. v. J.A., 2011 SCC 28, [2011] 2 SCR 440. In R. v. Patriquin (M.A.), (2004), 2004 NSCA 27, 221 N.S.R. (2d) 370 at 374 (N.S.C.A.), Chipman J.A., adopted the passage from R. v. Dennison (2002), 2002 NSSC 222, 208 N.S.R. (2d) 230 at para. 50 (S.C.):
..in order to be found to have lacked the capability of consenting, the complainant must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she choose to decline to participate.
[57] The question is not whether the person would have made a different decision if he/she was sober. As Nordheimer, J. explained in Sikorski, [2013] O.J. No. 5936 at para. 74:
In any event, the importance of the amount that the complainant had to drink is the reality that persons often do things when they are intoxicated that they would not do if sober. Indeed, there are precious few people who can honestly say that they have never regretted something that they did while under the influence of drink. While the complainant may not have had any particular interest in anal intercourse (or in our case, a romantic interest in the accused), that does not preclude the possibility that while she was intoxicated, she engaged in an act she otherwise would not have engaged in.
[58] In this case, the only clear evidence pertaining to the sexual encounter between the complainant and the accused comes from the accused. He testified that the sexual activity was entirely consensual. According to the accused, the complainant was actively participating in the touching and kissing, and willingly engaged in the sexual activity. He denies there was actual penetration, but testified that there was sexual touching, kissing, and consensual masturbation.
[59] The complainant testified that she has a “black out” regarding the events leading up to and during the sexual encounter. She has no memory of what occurred. Accordingly, she cannot say whether or not she voluntarily participated in the sexual activity because she has no actual memory of it.
[60] The evidence of T.H. confirms that R.P. was awake and conscious on the way up to the party. There is also no evidence to suggest that the complainant was unconscious either on the way back from the party or when she returned to T.J.’s place after leaving the party. The evidence of T.H. and the accused confirms that R.P. has no memory of various events that occurred while R.P. was conscious. For example, R.P. has no memory of getting out of the truck, or getting to the party. She also has no memory of what transpired when she initially got back to T.J.’s place. The evidence indicates she was clearly conscious and volitional during this period. R.P., in her own evidence, testified that she had a “blackout” regarding this time period.
[61] Absent expert evidence, a loss of memory or a “blackout” is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. See R. v. Masewich, [2015] O.J. No. 189.
[62] The Crown acknowledges that there is no evidence that R.P. was unconscious or incapacitated on the way back from the party or even after returning to T.J.’s place. The Crown argues, however, that there is evidence that the complainant fell unconscious shortly after seeing T.J. on top of her. R.P. testified that she has a memory of observing T.J. on top of her and having intercourse, just before turning her head to the side and closing her eyes. According to the Crown, R.P.’s recollection of this event is evidence demonstrating she fell unconscious and was not in a position to consent to the touching, at least at this point in time.
[63] However, to rely on this evidence of the complainant to conclude she was unconscious at this specific time would be dangerous in my view. I have no context for this memory, or any understanding of where in the sexual encounter it may have taken place. I have no way to know whether the complainant is having an actual recollection, whether she’s had a glimpse of events during a black out, or merely trying to reconstruct the events that took place.
[64] Considering the evidence tendered at trial, including the CFS Report, and the testimony of the complainant as to her soreness the next day, I believe that the accused probably did have sex with the complainant. However, I have nothing beyond the evidence of the accused regarding the circumstances surrounding the actual sexual encounter, and his assertion that it was consensual. The complainant has no actual memory of the events, nor is there any meaningful evidence indicating she lacked the capacity to consent. See R. v. Haraldson, 2012 ABCA 147, [2012] A.J. No. 502 (C.A.).
[65] The onus is on the Crown to make out the offence. In making this assessment, I cannot lose sight of the fact that the burden always remains on the Crown to prove the allegations beyond a reasonable doubt. Where there is defence evidence, including testimony from the accused as in this case, the court must not assume that its verdict can be based on a choice between the Crown’s evidence and the accused’s evidence. I must apply the rules set out in R. v. W. D., [1991] 1 S.C.R. 742, as follows:
If I believe the evidence of the accused, I must acquit.
If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit.
Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused’s guilt.
[66] In the circumstances here, I am not satisfied beyond a reasonable doubt that the sexual contact occurred without the complainant’s consent.
[67] Accordingly, I must acquit the accused of the charge.
Justice C.F. de Sa
Released: October 25, 2018