WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct al-leged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: CR-17-40000459-0000 DATE: 20181203 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – GHENADIE CARPOV Defendant

Counsel: Cynthia Valarezo, for the Crown Ernest Ashurov, for the Defendant

HEARD: September 10, 2018 BAWDEN J.: Orally

[1] L.M. went to Mr. Carpov’s rooming house on November 29th, 2015 to wait for her boyfriend. L.O. went to the same house on May 26th, 2016 to buy a cat. They both accepted alcoholic drinks from Mr. Carpov and shortly thereafter awoke to find themselves in his bed. It is not disputed that Mr. Carpov had sexual intercourse with both women. L.M. and L.O. testified that they have no recollection of ever entering Mr. Carpov’s bedroom and that they absolutely did not consent to any sexual contact with him. Mr. Carpov testified that they both enthusiastically consented to intercourse and were fully in command of their sensibilities when they did so.

[2] Mr. Carpov has pleaded not guilty to charges of sexual assault, administering a noxious substance to cause bodily harm and administering a stupefying thing to commit an indictable offence in regards to both complainants. These are my reasons for finding Mr. Carpov guilty of both counts of sexual assault and not guilty of all other charges.

L.M.

[3] L.M. was 46 years on the day of the alleged offence. She had a 23 year old son, held a full time job and had worked for a number of years as a resort coordinator. She had maintained a steady relationship with her boyfriend for four years. L.M. was not given to impetuous or risky behaviour. Quite the opposite. All indications are that L.M. led a conventional and perhaps even reserved lifestyle.

[4] On the morning of November 29th, 2015 L.M. and her boyfriend, B.O., were on the verge of breaking up. L.M. sent B.O. a heartfelt message reminding him of their emotional ties and expressing her hope that they would resume the relationship. At 9:58 a.m., B.O. replied “it wasn’t meant to be ... please don’t message me anymore.”

[5] Although this response was discouraging on its face, L.M. and Mr. B.O. had experienced similar break ups in the past and she was confident that this difficulty would be resolved. She sent a series of messages to B.O. between 11:00 a.m. and 12:35 p.m. assuring him that she loved him and advising him that she had saved $1,200 to put towards rent for a room that they would share. B.O. did not respond to any of her messages.

[6] L.M. decided to drive to B.O.’s rooming house at P[…] Avenue in the hope of speaking to him. She was familiar with the house, having visited there two days earlier when she and B.O. spent a pleasant evening chatting with the landlord and his daughter.

[7] L.M. knocked at the front door of P[…] at 1:07 p.m. and Mr. Carpov answered the door. On her previous visit, Mr. Carpov had welcomed her and B.O. to the house and served them popcorn and beer. L.M. had noticed that evening that the house was equipped with surveillance cameras and the cameras gave her confidence that the boarding house was a safe place.

[8] L.M. asked Mr. Carpov if B.O. was home. As she recalls it, he told her that he wasn’t but he expected him back at around 2:30 to 3:00 p.m. L.M. asked if she could wait for him in his room and Mr. Carpov allowed her to do so. He escorted her upstairs and then asked her if she would like some coffee. L.M. said that she would and followed Mr. Carpov to the dining room.

The Video Evidence of L.M. Drinking with Mr. Carpov

[9] At 1:10 p.m., L.M. and Mr. Carpov came within range of a surveillance camera which was affixed to the dining room ceiling. The camera captured the following views:

Foreground: In the foreground one can see the dining room table and one chair which is drawn up to the table. Mr. Carpov sits in this chair during most of the events which occur in the dining room and his upper body is visible while he is seated. L.M. is seated just outside the foreground of the video. Her head and hands only occasionally appear when she leans forward or accepts something from Mr. Carpov.

Left Side of Screen: The left side of the screen shows a portion of the frame of the bathroom door. Although this view does not show the entire doorway of the bathroom, it shows enough that one can reliably determine when someone enters or exits the bathroom.

Background: The background (or top of the screen) provides a distant view of the living room and front area of the house. The door to Mr. Carpov’s bedroom is not visible on the video but it is just to the left of the front entrance and one can see people enter and exit the bedroom on the video.

Right Side of Screen: The right side of the screen shows a computer stand, a bookshelf and a wall clock. Mr. Carpov’s daughter, Alina, is frequently seen sitting in front of the computer.

[10] As L.M. and Mr. Carpov enter into view of the camera at 1:10 p.m., Mr. Carpov points to the bathroom and L.M. enters the bathroom, closing the door behind her. Mr. Carpov goes to the kitchen.

[11] L.M. emerges from the bathroom at 1:11 p.m. and Mr. Carpov directs her to a dining room chair. As he does so, he touches her on the back and shoulder in what might be described as a familiar way. L.M. evidently did not raise any objection to being touched in this fashion and she sat down.

[12] Mr. Carpov returns to view at 1:12 p.m. carrying a shot glass in his left hand and a bottle in his right. He pours from the bottle into the shot glass and sets it down on the table in front of L.M. In her evidence, L.M. recalled that Mr. Carpov suggested that they have a drink to celebrate the fact that she would be moving in and to congratulate her for having decided to live in such a warm, family environment. She agreed to have a shot of vodka.

[13] Mr. Carpov returns to the kitchen at 1:13 and comes back 45 seconds later with what appears to be a plate of cheese. L.M. recalled that Mr. Carpov offered her cheese to eat with her vodka.

[14] At 1:14 p.m., Mr. Carpov sits down at the table and raises his own shot glass of vodka. There is nod between the two and then they each drink a shot. L.M. testified that Mr. Carpov poured more vodka into her glass than his own. When she drank the shot, it gave her a familiar shiver which she associated with drinking vodka.

[15] Approximately 30 seconds later, Mr. Carpov picks up a fresh bottle of vodka and appears to open it. As he speaks with L.M., he makes a gesture as if holding the steering wheel of a car. They continue to speak and then Mr. Carpov closes the vodka bottle and puts it back onto the table. L.M. testified that when she saw Mr. Carpov opening the second bottle, she told him that she had to drive home and could not drink much.

[16] Conversation continues between the two for another fifteen seconds and then Mr. Carpov picks up the vodka bottle and again removes the cap. He looks towards L.M., obviously seeking confirmation. L.M.’s response cannot be seen or heard but it causes Mr. Carpov to smile broadly and pour two more shots of vodka. As he pours the drinks, L.M. gets up from her chair and walks off camera to retrieve her cell phone from B.O.’s room. The camera records Mr. Carpov pouring two drinks in her absence. There is nothing to suggest that he tampers with L.M.’s drink. After pouring the drinks, Mr. Carpov leaves the table to go to the washroom.

[17] L.M. returns to the table at 1:17 p.m. Mr. Carpov emerges from the bathroom, goes into the kitchen and returns with a cup, coffee and coffee whitener. L.M. makes her own coffee using water which Mr. Carpov pours from a kettle. There is no evidence that Mr. Carpov tampered with any of the ingredients of the coffee.

[18] At 1:21 p.m., Mr. Carpov pulls his chair closer to L.M. and extends his shot glass towards her in order to touch glasses. L.M. responds by holding out her shot glass and they cheer one another before downing this second shot of vodka.

[19] L.M. was asked in her evidence in chief how many vodka shots she drank at Mr. Carpov’s home. She testified that she could only recall having consumed two shots and that the second shot was not poured from a vodka bottle but was rather poured from a personal water bottle. She recalled that when Mr. Carpov poured the second shot from the water bottle, he poured a large amount for her but only a “teeny bit” for himself. She could not recall seeing him drink the small portion that he poured for himself.

[20] Mr. Mills further testified that when they drank the second shot, Mr. Carpov suggested that they interlock their arms for a traditional Russian cheer which culminated with a kiss. She agreed to undertake this cheer. When she drank the shot, it did not give her the same shiver which she had experienced when she drank the first shot. She lost all memory not long after consuming this second shot and her next memory was of waking up in a completely disoriented state in Mr. Carpov’s bed. The clear implication of her evidence was that Mr. Carpov must have put a noxious substance into the second drink.

[21] The video belies L.M.’s recollection of events. The second vodka shot was poured at 1:21 p.m. and it was poured from a customary vodka bottle. Mr. Carpov poured an equal portion for himself and drank his shot right along with L.M. This shot was not accompanied by any elaborate cheer; it was the third shot at 1:27 p.m. which was accompanied by the interlocking of arms and a kiss. Mr. Ashurov explained that this is a traditional Russian cheer which is referred to as a Bruderschaft or “brother ship” cheer. The Bruderschaft shot was not poured from a water bottle but rather from a conventional vodka bottle.

[22] L.M. voluntarily consumed shots of vodka at 1:45 p.m., 1:50 p.m., 1:52 p.m. and 1:59 p.m. for a total of seven shots of vodka in the space of 44 minutes. The last three shots were all poured from a plastic water bottle rather than a vodka bottle but Mr. Carpov poured equal shots for himself on each occasion that he poured a shot for L.M. All of the drinks were poured within the view of L.M. and there is nothing in the video to suggest that Mr. Carpov tampered with any of the drinks that he handed to L.M.

[23] L.M. drank the second shot of vodka at 1:21 p.m. She initially testified that her memories ceased shortly after drinking that shot. At a later point in her evidence, however, she recalled sending a text message to her boyfriend at 1:37 p.m. which read “Im taking to the owner I have money for the rest of Dec. should I give it to him or leave? It’s up to you.” (sic). Contrary to her earlier evidence, she testified that she recalled events for 15 to 20 minutes after sending that message.

[24] L.M. consistently testified that her last memory was of drinking coffee and feeling as though she had to go to the bathroom and next waking up in bed beside Mr. Carpov.

The Video Evidence of Kissing and Touching in the Dining Room

[25] L.M. testified that Mr. Carpov repeatedly kissed her while she was seated at the dining room table. The video confirms that recollection. Mr. Carpov can be seeing touching L.M. in a familiar way even before the first shot of vodka. In the period between the 2nd and 3rd shots, he holds her leg, pulls his chair close to hers, draws her towards himself and kisses her on the cheek. Immediately after that kiss, Mr. Carpov pours the 3rd shot. In the period of time between pouring the 3rd shot and consuming it, he leans forward and listens very attentively to L.M. One can easily discern that Mr. Carpov was embarked upon a courtship of sorts.

[26] Mr. Carpov suggests that the third shot be consumed as a Bruderschaft. The maneuver requires that the two drinkers draw their faces close to one another and there is a pause at the end of the cheer where it appears that Mr. Carpov explains to L.M. that the cheer is completed by the exchange of kisses. L.M. complies with this suggestion which evokes laughter from Mr. Carpov.

[27] Shortly after the Bruderschaft cheer, Mr. Carpov stands up, leans down towards L.M. and kisses her. He then sits back down and continues to converse with her while occasionally resting his hands on her legs. At 1:40 p.m., he leans forward again, holds L.M.’s face in his own hands and kisses her directly on the mouth. L.M. seems unfazed by this advance.

[28] At 1:41 p.m., Mr. Carpov draws his chair close to L.M. as she shows him videos of her son on her cell phone. Mr. Carpov views the video for a brief period and then again places his hands on both sides of L.M.’s head and kisses her. L.M. continues to show the videos and the two sit close in order to see them.

[29] At 1:45 p.m., Mr. Carpov’s head is positioned very close to L.M. as he watches the videos. He pulls her towards himself again, kisses her and then pours the 4th shot of vodka.

[30] At 1:47 p.m., Mr. Carpov moves forward again and holds L.M. in a kiss which appears to land on her mouth for several seconds. Mr. Carpov smiles broadly after the kiss and leans back in his chair.

[31] At 1:48 p.m., Mr. Carpov again leans forward in his chair, takes hold of L.M.’s head and kisses her. There is never an occasion when L.M. leans towards Mr. Carpov or can be seen to do anything to initiate a kiss. The action is always Mr. Carpov’s.

[32] L.M. and Mr. Carpov consume further shots of vodka at 1:50 p.m. and 1:52 p.m.

[33] Mr. Carpov moves in for a flurry of kisses between 1:53:00 and 1:53:45. After the last kiss, he sits back in his chair and raises his hands, palms facing forward, at chest level. This is a universal gesture of apology, an interpretation which is confirmed by the slightly sheepish expression on Mr. Carpov’s face as he makes the gesture. L.M. testified that she was troubled by Mr. Carpov’s repeated kisses and finally reminded him that she had a boyfriend and that “this was a lot of kisses”. I have no doubt that this was the moment when she made that comment. Mr. Carpov briefly desisted from further efforts to kiss L.M.

[34] Not long after the apologetic gesture, Mr. Carpov leans in towards L.M. and resumes his close scrutiny of the videos on her cell phone. After watching the videos for a matter of seconds, he again takes hold of her and begins to kiss her. L.M.’s reaction to these kisses is indiscernible.

[35] L.M. was a moderate social drinker who testified that she never drank more than four drinks in a night out with friends. By this point in the afternoon, she had consumed six vodka shots in 38 minutes. After each amorous advance by Mr. Carpov, L.M. would placidly return to displaying videos of her son which Mr. Carpov would study with great interest until they presented him with some further justification to attempt a kiss.

[36] Mr. Carpov and L.M. kiss again at 2:00 p.m. L.M.’s head briefly comes within range of the camera and there is no sign of her doing anything to avoid or escape the kiss.

[37] At 2:01 p.m., Mr. Carpov picks up the water bottle and glances for the first time in the direction of the camera. He points towards his bedroom and puts his hand to his forehead. He gestures towards the camera and stands up. L.M. gets to her feet, takes a few slightly unsteady steps towards the bedroom and then turns back to the table. She retrieves her cell phone and a shot glass from the table. She slips the phone into her pants pocket and walks with the drink towards the bedroom. As she leaves the view of the camera at 2:02 p.m., she seems to be walking normally and is capable of holding a shot glass (which appears to be full of vodka) without spilling.

[38] At 2:50 p.m., Mr. Carpov emerges from the bedroom and walks towards the bathroom at a discernibly quick pace. He emerges a moment later carrying a large bowl and walks directly back to the bedroom.

Video Evidence of L.M.’s Condition at 6:35 p.m.

[39] At approximately 6:35 p.m., Mr. Carpov’s daughter, Alina, and her boyfriend, Kirill, can be seen on video about to leave the house. As they are walking towards the front door, they both suddenly freeze as though they have heard an unexpected sound. They look towards the closed door of Mr. Carpov’s bedroom with obvious concern. They leave the house without investigating whatever it is that they heard.

[40] The instant that Alina and Kirill leave the house, the bedroom door opens and L.M., supported by Mr. Carpov, emerges. She is in a pitiable state. She is wearing the same white turtleneck that she was wearing when she walked into the bedroom but she is now naked from the waist down. She makes an effort to cover herself with a bed sheet but is incapable of holding it in place. She appears disoriented and cannot walk without Mr. Carpov’s assistance. Mr. Carpov holds her arm while walking her into the bathroom.

[41] Mr. Carpov returns to the bedroom and comes out with a bedcover which had evidently been soiled. He throws that into a laundry bin and then retrieves a clean sheet which he takes to the bedroom.

[42] Mr. Carpov then goes back to the bathroom and at 6:36 p.m. retrieves L.M. who emerges completely naked from the waist down. He put his arms around her and walks her back to the bedroom.

[43] L.M. watched the video of these events while she was in the witness box and had absolutely no recollection of them. It was apparent that she was deeply ashamed by what she saw.

The Testimony Concerning What Occurred in the Bedroom

Evidence of L.M.

[44] L.M. testified that her last recollection was of sitting in the dining room, drinking coffee and thinking that she had to go to the bathroom. Her next memory was fleeting. She woke up in an unfamiliar room and was conscious of a very unpleasant odour. She opened her eyes and saw Mr. Carpov’s face inches from her own and recognized that the odour was his breath falling on her face. She struggled to wake up but was unable to do so.

[45] When L.M. next awoke, she was alone and the room was dark. She felt extremely groggy and could not move her head. Her neck, back and torso all felt sore and she had a burning sensation in her vagina. She was still wearing her turtleneck sweater and bra but she was naked from the waist down.

[46] L.M. equated the grogginess that she felt upon waking to the feeling that she had previously had when coming out of anaesthesia.

[47] Mr. Carpov entered the room and turned on the lights. L.M. asked him what had happened and where her clothes were. He pointed to her clothes on the floor and L.M. noticed that her underwear were still inside of her pants as though they had both been stripped off of her in one motion. Mr. Carpov told her that her boyfriend B.O. was outside and instructed her to get dressed.

[48] L.M. sent a text message to her mother at 9:21 p.m. saying “hi mum”. Her mother responded by asking “where are you?” L.M. responded at 9:25 p.m. by again saying “hi mum”.

[49] The video shows L.M. leaving the bedroom at 9:26 p.m. looking very unsteady. She moves towards the bathroom with Mr. Carpov’s assistance. Her cell phone is in her hand and she repeatedly tries to put it into her pocket without success. Mr. Carpov addresses her quite urgently just outside of the bathroom and puts his fingers to his lips as a demonstration that she must be quiet. L.M. enters the bathroom at approximately 9:27 p.m. and sends a message to her mother saying “I’m on my way on home”.

Evidence of Mr. Carpov

[50] Mr. Carpov was 52 years old in November, 2015. He was born in Moldavia and was married there. He and his wife divorced and Mr. Carpov and his daughter, Alina, emigrated to Canada.

[51] Mr. Carpov rented the home at P[…] Avenue along with Alina and her boyfriend, Kirill. The three would sublet rooms in the house as a means of generating income. Mr. Carpov’s role in the management of the rooming house was to handle the documentation when new residents arrived and to maintain a comfortable family environment in the house.

[52] There is no dispute that Mr. Carpov suffered from a serious addiction to alcohol. He testified that he routinely drank a 750 ml bottle of vodka every day and that if he didn’t drink every two hours, he risked fainting. He was also a chronic insomniac and would attempt to induce sleep by drinking alcohol. He indicated that he was sporadically employed as an extra on film productions but was otherwise unemployed.

[53] Mr. Carpov recalled the evening when L.M. first came to the home with B.O.. L.M. made no particular impression on him and when he answered her knock on the door on November 29th, he did not recognize her. She had to remind him several times that she was B.O.’s girlfriend.

[54] Mr. Carpov adamantly denied that he had ever discussed L.M. moving into the house with B.O.. As he recalls events, the existing tenants were complaining about overcrowding in the bathroom and there was absolutely no room to take on an additional tenant. If L.M. had ever raised the prospect of moving into the house, Mr. Carpov would have emphatically rejected the proposal.

[55] Mr. Carpov also disputed L.M.’s evidence that he told her that B.O. would be home between 2:30 to 3:00 p.m. Mr. Carpov convincingly testified that it was not his business to monitor the comings and goings of his tenants and he had no idea when B.O. would be returning to the house.

[56] According to Mr. Carpov, L.M. asked him for a cup of coffee. He agreed to make the coffee and as they were sitting at the table, he decided that he would like to have a shot of vodka from a bottle which was already on the table. Not wanting to be rude, he offered a shot to L.M. who surprised him by saying “sure” in an excited manner. This was a welcome response to Mr. Carpov who preferred to have company when he drank.

[57] Prior to pouring the second shot, Mr. Carpov inquired whether L.M. was driving and when she said that she was, he put the bottle aside. To his surprise, she waved to indicate her desire for more vodka and told him that she would be fine to drive.

[58] By the time that he poured the third shot of vodka, Mr. Carpov was aware of a “very very positive energy” between himself and L.M. He could tell by her eyes that she liked him. They kissed after the Bruderschaft cheer and he felt even more positive energy. L.M. was smiling at him and giving him warm looks. She would lean in towards him on each occasion that they kissed and would smile at him afterwards in a manner that conveyed that she “didn’t mind” the kiss. She never reminded him that she had a boyfriend or raised any objection to his kisses.

[59] Mr. Ashurov asked Mr. Carpov how matters progressed in less than 20 minutes from the awkward meeting at the door when he had not even recognized L.M. to kissing her intimately in the dining room. Mr. Carpov acknowledged that it was a difficult question but explained that when a man kisses a woman and sees how she looks back at him, he can see that she shares his mood. Things can become more and more exciting and a man will be inspired by the woman’s evident interest in continuation. In his experience, sometimes a short period is enough to develop such excitement. So it was with L.M.

[60] Mr. Carpov testified in chief that he was aware that L.M. was drinking a great deal of vodka and that he was worried about her. He urged her to have something to eat as she drank and suggested “maybe this is enough for you”. According to his evidence in chief, L.M. replied that her father, who was of First Nations descent, taught her how to drink and she insisted that he keep pouring.

[61] Mr. Carpov’s evidence on this point changed in cross-examination where he flatly denied that he had ever said “maybe this is enough for you” to L.M. This was a very material inconsistency in Mr. Carpov’s evidence.

[62] Mr. Carpov testified that by the time that he poured the 7th shot, he could feel the relationship was shifting to an intimate level and that “passion (was) in the air”. He became concerned that the camera overhead would record any intimate act between them and, because of his desire to preserve a woman’s dignity, he suggested that they move to the bedroom. Alina and Kirill both had access to the video file and Mr. Carpov testified that he was concerned that they might happen upon the video of an intimate act.

[63] As soon as they entered the bedroom, Mr. Carpov and L.M. began to hug and kiss. L.M. took off all of her own clothing as did Mr. Carpov. They lay down on the bed together and had “tender and passionate” intercourse in the missionary position. Mr. Carpov estimated that roughly 20 minutes elapsed from the time that they entered the room until the completion of the intercourse.

[64] After intercourse, they lay about on the bed “for some time” before L.M. reminded Mr. Carpov that he had poured shots of vodka that were yet to be consumed. Mr. Carpov got up to get the shot glasses. As he was doing so, L.M. put all of her clothes back on. He supposed that she had become uncomfortable being naked. They had two more shots of vodka together while talking about “regular topics”. L.M. remained absolutely sober throughout all of these events. In Mr. Carpov’s view, she did not even seem to be tipsy.

[65] Roughly five minutes after the second shot in the bedroom, (the 9th shot overall), L.M. began to look very tired. Mr. Carpov suggested that she go to B.O.’s room to sleep but she wanted to stay where she was and he permitted her to do so. He asked her if she was unwell and she insisted that she was fine. Mr. Carpov waited with her for a few minutes and then went to the washroom to get a basin “just in case” she later felt ill.

[66] Mr. Carpov went in to check on L.M. at approximately 6:20 p.m. He was surprised when he walked into the room and saw that L.M. had removed her pants and underwear. He smelled a strong smell of urine in the room and realized that L.M. had urinated on her clothing and the bed. L.M. woke up and said that she had to go to the bathroom. Mr. Carpov wrapped a sheet around her waist and helped her to the bathroom. After returning her to the room, he took her underwear and pants to the bathroom to air them out.

Evidence Concerning Peripheral Events

[67] There was a great deal of evidence at trial concerning the arrival of B.O. at the house and the events which followed involving L.M. and Mr. B.O. on the street outside of the house. The evidence was primarily elicited by the defence for the purpose of suggesting that L.M. was motivated to make a false allegation of sexual assault against Mr. Carpov in order to preserve her relationship with Mr. B.O.. I place very little stock in that theory and will accordingly recount the evidence in summary fashion.

[68] When Mr. B.O. arrived at the house, Mr. Carpov instructed Kirill to detain him on the front porch while L.M. collected herself. Mr. B.O. eventually entered the house at 9:34 p.m. and found L.M. in the bathroom where she had evidently fallen asleep. Mr. B.O. asked her if she was drunk and she did not answer. He took her phone away from her and walked her to the front door. Mr. Carpov observed the two of them arguing on the street in front of the house and saw Mr. B.O. throw L.M.’s cell phone with considerable force. A photograph of the phone taken by police showed that the back of the phone had been shattered.

[69] In her initial statement to police, L.M. minimized the argument that she had had with B.O. and simply said that her phone had dropped.

[70] Although she knew that she was impaired, L.M. drove herself home. Her mother, Anne Thureson, described her as sobbing and incoherent when she arrived between 11:00 and 11:30 p.m. L.M. he told her mother that she had been raped and drugged and out cold since 1:00 p.m. [1] Ms. Thureson insisted on calling police and L.M. ultimately agreed. L.M. was taken to hospital by ambulance later that evening.

Analysis Regarding the Allegation of Administering a Noxious Substance to L.M.

[71] L.M. testified that she is sure that Mr. Carpov administered a noxious substance to her. The Crown relies on her evidence in addition to the similar fact evidence of L.O. in order to prove the charge against Mr. Carpov.

[72] There are a number of facts which militate against a finding that Mr. Carpov administered a noxious substance to L.M.:

a. Mr. Carpov had no advance notice that L.M. would be attending his home on November 29th, 2015. If a DFSA (drug facilitated sexual assault) drug was administered through the vodka, it would have had to have been mixed into the vodka prior to her arrival.

b. The police did not find any DFSA drug in Mr. Carpov’s home.

c. L.M.’s blood and urine were examined for evidence of DFSA drugs and none were found.

d. L.M. was familiar with the taste of vodka. She did not report any odd taste to the vodka served to her by Mr. Carpov. She did testify that the second shot did not cause her to shiver as the first one had but she acknowledged that this could be because it was a smooth vodka.

e. Mr. Carpov poured his own shots from the same bottles that he used to pour for L.M. He drank the same vodka in the same volume and it did not stupefy him.

f. The coffee that Mr. Carpov served to L.M. came from an unopened tin. L.M. mixed her own coffee and did not notice anything unusual about the taste. The Crown suggested to Mr. Carpov in cross-examination that he had drugged the boiling water that he served to L.M. but that suggestion lacked any evidentiary foundation. Mr. Palmentier was never asked if DFSA drugs would retain their stupefying effects if they were mixed with boiling water.

g. Mr. Carpov cut L.M.’s slice of cheese in front of her and within view of the surveillance camera. At a later point in the day, Kirill ate a portion of the same cheese with no apparent ill effects.

h. Mr. J.P. Palmentier, an expert toxicologist from the Centre of Forensic Sciences, testified that all of the symptoms described by L.M. including blackout, loss of consciousness and loss of coordination could be attributed to the consumption of alcohol alone. L.M. provided a blood sample at 4:13 a.m. on November 30th. Her blood alcohol concentration (BAC) at that time was 72 milligrams in 100 millilitres of blood. Calculating backwards from that result using the customary alcohol elimination rate, Mr. Palmentier estimated that L.M.’s BAC at 2:00 p.m. would have been in the range of 194 to 356 ml of alcohol in 100 ml of blood.

i. Mr. Palmentier testified that blackouts are more common when light drinkers consume large amounts of alcohol in a short period of time:

And so alcohol can affect memory but again, it’s not predictable… the likelihood of experiencing (a blackout) increases if you’ve already had one and it is more likely to occur in light to moderate drinkers when the person’s blood alcohol concentration is rising very rapidly, such as bolus drinking where you’re drinking a very large quantity over a very short period of time and your blood alcohol concentration is rising very rapidly compared to a social drinking scenario. And in sort of moderate drinkers to heavy drinkers, it may occur in those individuals in concentrations in excess of 200 milligrams in 100 millilitres of blood.

[73] It is clear that L.M. has come to believe that she was drugged. I find that her recollections of drinking with Mr. Carpov have been influenced by that belief and as a result, her evidence on the point is unreliable. The following aspects of L.M.’s evidence give rise to significant concerns about her reliability:

a. L.M. testified at the preliminary inquiry that her last memory was of wanting to go to the bathroom and that when she went to Mr. Carpov’s bedroom, she believed that she was going to the bathroom.

When L.M. first came downstairs and walked into the dining room, she asked to use the washroom and Mr. Carpov pointed it out to her. She entered the bathroom and closed the door behind herself at 1:10 p.m. This occurred prior to any alcohol being served. Over the course of the ensuing 45 minutes, L.M. was seated in a chair which faced the washroom. When she got up to walk towards the bedroom at 2:01 p.m., she deliberately picked up a shot glass and carried it with her. If L.M. believed that she was going to the bathroom, it is unlikely that she would not have taken a glass of vodka with her.

I do not believe that L.M. ever mistook Mr. Carpov’s bedroom for a bathroom.

b. L.M.’s testimony that the second shot of vodka was poured from a water bottle was disproved by the video. In her evidence at trial, she testified that she felt a shiver when she drank the first shot but not the second. When she testified at the preliminary inquiry, she did not recall any difference between the two shots.

c. L.M. testified that her memory went blank shortly after taking the second shot which she recalled having been poured from a water bottle. As her evidence developed, however, it became obvious that L.M. recalled a number of events which occurred after the second shot including sending a text message to her boyfriend at 1:37 p.m. She clearly recalls Mr. Carpov pouring shots from a water bottle and this did not occur until the 5th shot at 1:50 p.m. It can safely be said that L.M. vastly understated the amount of vodka that she accepted from Mr. Carpov.

d. In her initial statement to police on November 30th, 2017, L.M. said “I’m not saying that there was anything in there but I just want to know why I don’t remember how I got from the table to the bedroom and why I can’t recall anything and why my clothes are off…” Prior to testifying at the preliminary inquiry, L.M. saw a news report concerning Mr. Carpov’s arrest on new charges including administering a noxious substance. By the time that she testified at the preliminary inquiry, L.M. was certain that she had been drugged by Mr. Carpov.

e. L.M. testified that she was a moderate social drinker and her mother confirmed that evidence. She had never consumed anything in the order of seven shots of vodka in less than 45 minutes and had no basis to compare the effects of a sudden elevation to a high blood alcohol concentration to the effects of a DFSA drug.

[74] Based on these findings, I cannot rely on L.M.’s testimony to find that Mr. Carpov administered a noxious substance. The only argument that remains for the Crown is the similar fact evidence.

[75] L.M. and L.O. both had experience in drinking alcohol. Neither had ever blacked out or lost consciousness as a result of drinking before yet they independently reported these experiences shortly after drinking with Mr. Carpov. Both women are seen on video walking into Mr. Carpov’s bedroom without assistance and both exhibit seemingly conscious behaviour prior to entering the room. They were both adamant that they had no sexual interest in Mr. Carpov and would never have consented to sexual activity with him. Although the Crown cannot identify the stupefying substance that was used nor explain how it was administered, Ms. Valarezo submits that the only reasonable explanation for the similar experiences of the two complainants is that Mr. Carpov administered noxious substances to them both.

[76] My difficulty with that argument is strictly factual. Having studied the video and carefully considered the evidence of Mr. Palmentier, I simply cannot find any convincing basis to believe that Mr. Carpov administered a noxious substance to L.M. He didn’t need to. She voluntarily consumed an enormous amount of vodka in a very short space of time which could easily account for a blackout and loss of consciousness. Given his own enormous tolerance, Mr. Carpov was able to drink the very same volume of alcohol without any outward sign of intoxication. He acknowledged as much in his evidence.

[77] I find that it is unlikely that Mr. Carpov administered a noxious substance to L.M. and accordingly, the charges under section 245(a) and 246(b) of the Criminal Code are dismissed. It also follows that L.M.’s evidence is of no assistance in determining whether a noxious substance was administered to L.O.

Analysis Regarding Sexual Assault on L.M.

[78] Mr. Carpov testified that L.M. willingly engaged in sexual intercourse with him almost immediately after they entered the bedroom. The intercourse went on for some 20 minutes which was followed by a period of “lying around” talking for a bit. Throughout this time, L.M. appeared to be absolutely sober. He did not even see a sign that she was tipsy. If I accept this evidence or conclude that it might reasonably true, the Crown would have failed to prove that L.M. did not consent to the sexual touching and would acquit Mr. Carpov of the sexual assault.

[79] There are a number of reasons why I reject Mr. Carpov’s testimony concerning the events in the bedroom and find that his evidence could not reasonably be true.

a. The video from the dining room does not reflect a single amorous advance by L.M. towards Mr. Carpov. On the contrary, it is Mr. Carpov who continually reaches for L.M., grasping her head with both of his hands and kissing her. Mr. Carpov testified that almost immediately after leaving the view of the camera, Ms. Mils removed all of her clothing and engaged in passionate intercourse with him despite the fact that she had known him for less than an hour. There is nothing in the video that would suggest that this was plausible account of events.

b. L.M. went to the house that day in order to reconcile with her boyfriend. This intention is reflected in all of her text messages to B.O. including the one that she sent at 1:37 p.m., roughly 20 minutes before entering the bedroom. Given her determination to repair that relationship, it seems most unlikely that L.M. would have willingly engaged in sexual intercourse with the landlord when Mr. B.O. was expected home at any moment.

c. When L.M. is last seen leaving the dining room, she is carrying a shot glass full of vodka. Mr. Carpov is also carrying a glass as well as a bottle of vodka. It is apparent that they both intend to drink more vodka in the bedroom yet Mr. Carpov is adamant that this did not occur. On his account of events, they immediately put down their drinks when they entered the bedroom and engaged in sexual intercourse for twenty minutes. On his account, they did drink two additional shots of vodka but only after the sex, not before. [2] Mr. Carpov’s account of events seems calculated to accommodate the toxicology evidence. Mr. Palmentier testified that L.M.’s BAC would have peaked roughly 15 minutes after her last drink. If L.M. drank seven one ounce shots of vodka between 1:14 p.m. and 1:59 p.m., her BAC at 2:14 p.m. would have been only 123 to 133. But working backwards from the BAC which was measured at 4:13 a.m., her BAC at 2:00 p.m. was in the range of 194 to 356. The only way to explain how L.M. could appear to be completely sober when she consented to intercourse and yet hopelessly disoriented at 6:40 p.m. would be to say that sex occurred immediately after entering the bedroom and that it was followed by a substantial amount of additional drinking. That strikes me as a very unlikely sequence of events based on what appears in the video.

d. The video shows Mr. Carpov leaving the bedroom rather hurriedly at 2:50 p.m. to fetch a basin from the bathroom. Mr. Carpov testified that at the time that he went to get the basin, L.M. was not showing any signs of intoxication but he was concerned that she might later become unwell and so he fetched the basin as a precaution. The urgency of his pace utterly belies this testimony. The basin was required for immediate use.

e. Mr. Carpov was asked in his evidence in chief why he had had unprotected sex with L.M. He testified that immediately prior to ejaculating, he asked L.M. if he could “do it inside of her” and she invited him to do so because she had “either a UDI device or some device that protects her from getting pregnant.” Counsel for Mr. Carpov paused and then asked “Mr. Carpov, are you sure that she said that she had some device inside of her?” Mr. Carpov answered in the affirmative and testified that he would not have ejaculated inside of her if she had not said that. Counsel returned to the topic later in the examination and as it became evident to Mr. Carpov that his evidence about “a device” was of some concern, he began to express uncertainty as to precisely what L.M. had said. He ultimately claimed that he hadn’t paid attention to her response. His initial responses, however, were clear and emphatic.

L.M. had had a hysterectomy prior to these events and would not have needed any device to prevent pregnancy.

f. L.M. believes that she was drinking from a one ounce shot glass. Mr. Carpov was uncertain as to the volume of the glass but estimated that it held 50-60 ml of fluid which would correspond to 1.7 to 2.0 fluid ounces. On either account, L.M. consumed an enormous amount of alcohol on an empty stomach in less than 45 minutes. One can see that she is unsteady as she rises from her chair on the way to the bedroom. I absolutely reject Mr. Carpov’s evidence that L.M. was showing no signs of intoxication as much as twenty minutes after she entered the bedroom.

[80] I also reject certain aspects of Mr. Carpov’s evidence concerning events prior to entering the bedroom.

a. L.M. testified that Mr. Carpov suggested a drink of vodka to celebrate the fact that she would be moving into the house. She recalled that Mr. Carpov congratulated her for choosing a home that had such a wonderful family atmosphere. Mr. Carpov disputed this evidence and claimed that the house was already full and there had never been any discussion of taking L.M. on as an additional boarder. He adamantly denied in cross-examination that the many cheers seen on video reflected any sort of celebration.

I accept L.M.’s evidence on this point. Her text message to B.O. at 1:37 p.m. reflects a clear understanding that she was welcome to move into the house. Mr. Carpov had little or no income at the time of these events and I have no doubt that he would have welcomed the additional rent that could be generated by having two tenants occupying one bedroom. L.M.’s evidence about the family atmosphere in the house mirrors Mr. Carpov’s own evidence under cross-examination about his role in maintaining a family atmosphere. Mr. Carpov’s demeanour at the outset of the drinking is entirely consistent with a celebratory toast.

b. Mr. Carpov testified in chief that he became concerned that L.M. was drinking too much and said to her “maybe this is too much for you”. In cross-examination, he denied having said this in chief. There is absolutely no reality to the suggestion that Mr. Carpov was concerned about the amount that L.M. was drinking. There is nothing in the video to suggest that he had the slightest reluctance to pour more vodka and, on the contrary, he smiles broadly whenever L.M. indicates that she will have more. If he was at all concerned about the volume that she was drinking, he would presumably have slowed the pace. Mr. Carpov instead increased the pace by pouring the last four shots in quick succession at 1:45, 1:50, 1:52 and 1:59.

c. Mr. Carpov testified that he suggested to L.M. that they move to the bedroom because he sensed that passion was in the air and he feared that her dignity might be compromised if Alina or Kirill were to see the video of their sexual encounter. There was nothing in the evidence which would even begin to explain why Alina or Kirill would sift through hours of unremarkable video to see what Mr. Carpov was doing in the house during their absence. Mr. Carpov moved L.M. to the bedroom because he wanted to have sex with her, not because he was concerned that Alina or Kirill would discover the video of their flirtations in the dining room.

The Theory of the Defence

[81] The defence theory is that L.M. decided while in a drunken state to have sex with a virtual stranger. As she became sober, she realized that her boyfriend was angry that she was drunk and became jealous when he saw text messages to a male friend on her cell phone. Her mother was also angry at her for having stayed out late with her car and then driving the car home while in an intoxicated state. In order to hide the evidence of her poor judgment, L.M. fabricated an allegation that Mr. Carpov had administered a noxious substance to her and then sexually assaulted her while she was unconscious.

[82] The defence is under no obligation to provide a theory to explain the facts of the case but when a theory is offered, the court is obliged to consider it to determine if the theory provides a reasonable interpretation of the evidence which raises a doubt as to the guilt of the accused. I have considered the defence theory and I reject it for the following reasons:

a. L.M. was a fully mature woman at the time of these events. She had lived on her own for many years and raised a son to the age of 23. I utterly dismiss the suggestion that she would fabricate an allegation of sexual assault in order to placate her mother’s concern about arriving home late in a drunken state.

b. There is no admissible evidence before the court that B.O. was jealous about anything. The video demonstrates that he arrived at the rooming house and found L.M. inebriated. L.M. did not say anything to him about having had intercourse with Mr. Carpov and, in fact, she was not even certain that intercourse had occurred until the DNA results came back from the Centre of Forensic Sciences. Mr. Carpov certainly wasn’t volunteering any information in that regard. There is evidence that B.O. broke L.M.’s cell phone shortly after they left the home but it would be speculative to say why he did that. There is no admissible evidence that would explain why L.M. would fabricate an allegation of sexual assault in order to placate her boyfriend.

[83] Having rejected Mr. Carpov’s evidence and concluded that it does not given rise to any reasonable doubt, I am left to determine if I am satisfied beyond a reasonable doubt that Mr. Carpov sexually assaulted L.M. based on the evidence that I do accept. In order to answer that question, I must delve into the difficult question of when an intoxicated complainant has lost the capacity to consent to sexual activity.

[84] I accept L.M.’s evidence that she lost the ability to recall events at some point during the time that she was drinking with Mr. Carpov. Mr. Palmentier testified that a moderate drinker who consumes a large amount of alcohol in a short period of time would be more prone than a heavy drinker to blacking out. That precisely describes what occurred in this case. L.M. quite genuinely stated that she had no recollection of ever walking into Mr. Carpov’s bedroom and I accept her evidence.

[85] The fact that L.M. was blacked out when she entered the room does not necessarily mean that she was incapable of consenting to sexual activity. L.M.’s lack of memory deprives the court of her direct evidence as to whether or not she consented at the time of the sexual activity. It is possible that she did consent while in an intoxicated state and now cannot recall her consent. The fact that she was blacked out, however, is one of many circumstantial facts which are available for the court to consider in determining whether or not the Crown has proven either that she did not consent or that she was incapable of consenting. In the unusual circumstances of this case, the Crown is able to rely on a great deal of video evidence to prove facts circumstantially which ordinarily can only be proven with direct evidence.

[86] L.M. testified that she has a fleeting memory of “waking up” with Mr. Carpov’s breath falling on her face but she was unable to rouse herself and fell back asleep. Her evidence was inconsistent as to whether she was aware of being disrobed or not at that moment. She testified that she did not regain consciousness until roughly 9:15 p.m. when Mr. Carpov came into the room and told her that B.O. was outside. It is arguable that I could accept this as direct evidence that she was unconscious at the time of any sexual touching but the evidence does not foreclose the possibility that L.M. consented to sexual touching while she was blacked out but still conscious. When L.M. is last seen prior to leaving the dining room, she demonstrates conscious behaviour by walking back to the table, picking up her cell phone and then taking a vodka glass in hand before walking to the bedroom. Given her lack of memory, L.M. is not in a position to positively state that she did not consent to sexual activity while she was blacked out. She can – and has – testified to a number of factors which circumstantially suggest that she would not have consented but absent any memory of events, she cannot say determinatively what she did or did not do.

[87] In light of my conclusion that L.M. was blacked out but still clearly conscious when she entered the bedroom, it is impossible for the Crown to satisfy me beyond a reasonable doubt that she was unconscious at the time of sexual activity. The only remaining question is whether the Crown has proven beyond a reasonable doubt that L.M. was incapable of consenting.

[88] Justice McLachlin described the test for capacity to consent in R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440 at paragraph 44:

44 The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.

[89] Justice Mara Greene conducted a thorough and very helpful review of the case law regarding capacity to consent in the case of R. v. M.T. 2016 ONCJ 614. Justice Greene reviewed the facts in a number of trial and appellate decisions to determine the level of incapacity that has been sufficient to satisfy courts that a complainant was incapable of consenting. After reviewing the factual findings of Justice Fairburn, (then sitting as a trial judge), in R. v. Hinds [2016] O.J. No. 257 (SCJ), Justice Greene wrote:

[86] The extreme level of intoxication that is required to prove incapacity to consent was recently illustrated by Fairburn J. of the Superior Court of Justice in R. v. Hinds [2016] O.J. No. 257 (SCJ). In this case, a witness entered a room to find the complainant half naked with three men. The witness kicked the men out and tended to the complainant. The complainant was so impaired that she was unable to dress herself. According to the witness shortly after the sexual event the complainant looked blank at times and was zigzagging. Nonetheless, Fairburn J. concluded that she had a reasonable doubt about the complainant’s capacity to consent…

[87] In my view, this judgment establishes just how intoxicated one must be to lose capacity to consent. The trial judge found that the complainant looked blank at times, could not walk properly at times and could not dress herself, but nonetheless retained the capacity to consent because of the evidence that a short time earlier she had been in control of her actions, had not consumed any additional alcohol in the meantime and, she was able to comprehend one of her friend’s comments, react to it and make a decision to ignore it.

[90] I agree with Justice Greene’s summary of the law and her gently implied dismay at the high level of intoxication which is required to prove incapacity to consent beyond a reasonable doubt. Notwithstanding this very high hurdle, I am satisfied beyond a reasonable doubt that L.M. did not have the capacity to consent when Mr. Carpov had intercourse with her. I am persuaded of this by the following evidence:

a. L.M. had her last shot of vodka at 1:59 p.m. Mr. Palmentier testified that it takes roughly 15 minutes after the last drink is consumed before the alcohol is fully absorbed and peak BAC is reached. On that basis, when L.M. walked into the bedroom at 2:01 p.m., she had not yet fully absorbed the alcohol that she drank at 1:50, 1:52 and 1:59. By 2:14 p.m., she would have absorbed all of that alcohol and her BAC peaked. If all of the alcohol was consumed prior to entering the bedroom, that peak was in the range of 194 to 356 mg/100ml of blood. This evidence fully explains how L.M. could display seemingly conscious behaviour at 2:01 p.m. and then rapidly deteriorate to unconsciousness shortly after entering the bedroom.

The effects of the alcohol on L.M. are visible at 6:40 p.m. when Mr. Carpov leads her out of the bedroom and into bathroom. L.M. is plainly disoriented and incapable of walking without assistance. She was incontinent. No one would suggest that L.M. was capable of consenting to sexual activity at 6:40 p.m. yet her BAC at that time would have been 40 to 80 milligram percent lower than it was at the time of the sexual activity. Mr. Palmentier calculated that L.M.’s BAC when she appears on video at 6:40 p.m. was in the range of 148 to 163 milligram percent.

b. It is impossible to say with certainty whether L.M. drank more alcohol in the bedroom or not. If the seven shots that she drank in the dining were no more than 1 fluid ounce, her BAC at 2:01 p.m. would have been 123 to 133 milligram percent. Based on her measured BAC at 4:13 a.m., her BAC at 2:00 p.m. would have been between 194 to 356 milligram percent. That vast discrepancy can be accounted for in one of two ways: either L.M.’s shot glass held much more than one fluid ounce (which would be in keeping with Mr. Carpov’s testimony) or more vodka was consumed in the bedroom.

I cannot determinatively say whether or not L.M. drank more vodka in the bedroom. I do find, however, that if she did drink in the bedroom, she did so almost immediately after entering the room. L.M. was a moderate drinker. The seven shots which she consumed in the dining room were bound to incapacitate her very shortly after she entered the bedroom. I do not accept that she entered the bedroom, engaged in sexual activity for some twenty minutes, chatted for several more minutes, re-dressed herself and then consumed two more shots of vodka. Thirteen minutes after the bedroom door closed, L.M. had to have been experiencing the full effects of the first seven shots. The fact that Mr. Carpov hurriedly left the room at 2:50 p.m. to get a bucket is a very reliable indicator of just how quickly L.M.’s condition deteriorated.

c. There is a vast body of circumstantial evidence which causes me to find that L.M. would not have consented to have sex with Mr. Carpov if she had been able to make a voluntary decision. Mr. Carpov was substantially older than L.M. He was a virtual stranger to her and L.M. gives a convincing explanation as to why she found him to be unattractive. L.M. testified that she wished to resume her relationship with her boyfriend and that testimony is fully corroborated by her contemporaneous text messages. Having unprotected drunken sex with her boyfriend’s landlord at a time when he was expected home at any moment would not have furthered that goal.

Conclusion – Sexual Assault on L.M.

[91] L.M. struck me as a simple and very trusting woman. She entirely believed Mr. Carpov when he described the family atmosphere at his boarding house and she blindly drank shot after shot with him without any apparent consideration of her vulnerability. Mr. Carpov played to her trusting nature by listening rapturously to her stories about her son and extravagantly praising her attributes as a mother. He knew the effect that the vodka would have in time and he intended to maneuver her into his bedroom before those effects became apparent on the video.

[92] I am satisfied beyond any reasonable doubt that L.M. lacked the capacity to consent to sexual touching as a result of her intoxication. Mr. Carpov knew that she lacked that capacity and took advantage of it in order to have sexual intercourse with her. Based on those findings, all of the essential elements of the offence of sexual assault are made out and I find Mr. Carpov guilty of sexually assaulting L.M.

Charges Involving L.O.

[93] Mr. Carpov was arrested and charged with having sexual assaulted L.M. on November 30th, 2015. He was released on a Promise to Appear. Six months later, a 25 year old woman named L.O. came to Mr. Carpov’s home to buy a cat.

L.O.’s Evidence

[94] L.O. saw an ad on Kijiji advertising a pure breed Siberian cat for sale. The seller was Mr. Carpov’s daughter, Alina. L.O. contacted Alina Carpov by e-mail and Alina invited her to come to her home at P[…] Avenue to see the cat. L.O. arrived at the house at 11:00 a.m. and texted Alina to say that she was there. Alina responded that someone would come out to see her.

[95] Mr. Carpov emerged from the side door of the house and invited her in. He took her to the tenants’ kitchen and introduced her to the cat. L.O. played with the cat for roughly an hour and decided to buy it. She told Mr. Carpov that she would return shortly with a $40 deposit.

[96] When L.O. returned at approximately 2:00 p.m., Mr. Carpov was the only one in the house. He told her that Alina was in class and invited her to join him on the porch for a cigarette. She agreed to stay and the two can be seen on surveillance video from the porch smoking and vaping for several minutes.

[97] Mr. Carpov then asked L.O. if she would come inside for a glass of wine. He told her that he would be grateful for a chance to practice his English. L.O. viewed the invitation as an opportunity to learn more about the environment in which her cat had been raised and she was sympathetic to Mr. Carpov’s desire to practice English. Her grandmother had similarly importuned strangers. She accepted the invitation.

[98] L.O. sat on a couch in the living room. Mr. Carpov went to the kitchen and can be seen on the dining room surveillance video returning with a 1.5 litre bottle of wine and two glasses. There was no video camera in the living room and the only evidence concerning events which occurred there comes from the testimony of L.O. and Mr. Carpov.

[99] The bottle that Mr. Carpov brought had already been opened. L.O. recalled that Mr. Carpov poured wine into the two glasses and then handed a glass to her. He had his back turned to her when he poured the wine and she was not able to see him pouring her drink. The glass that he handed her was an ordinary drinking glass which she estimated would hold a maximum of seven ounces of liquid. The first drink that Mr. Carpov gave her was just over half full and probably held 4 to 5 ounces of wine. L.O. noticed that Mr. Carpov poured more wine for her than he did for himself.

[100] L.O. did not notice anything unusual about the wine when she tasted it. She described it as a stale, cheap wine. She did not notice any ill effects after drinking the first glass.

[101] Mr. Carpov poured her a second glass although she had not requested it. The second drink was larger than the first; it occupied roughly two-thirds of the glass. Mr. Carpov poured a second glass for himself and it was again smaller than the one that he had poured for her. She drank the entire second glass and still felt fine.

[102] Mr. Carpov poured a third glass of wine for L.O. On this occasion, he filled her glass to roughly the three quarters mark while pouring less than half of a glass for himself. L.O. testified in chief that she began to drink the third glass but did so slowly. In cross-examination, she said that she only had a sip.

[103] By the time that Mr. Carpov poured the third drink, L.O. was becoming concerned. She noticed that he was keeping track of which glass was his rather than hers and he said to her at one point “the cat could be a gift if you were mine”. She was confused and unsettled by this statement and simply replied “no”.

[104] Mr. Carpov returned to the kitchen at 3:16 p.m. and returned holding two more 1.5 litre bottles of wine. He displayed the bottles in a triumphant fashion to L.O. but was evidently disappointed by her response. He returned both bottles to the kitchen.

[105] L.O. went to the bathroom at 3:17 p.m. Her gait at that time was slightly unsteady. She came out of the bathroom three minutes later and returned to the living room where Mr. Carpov had been alone with the wine and the glasses.

[106] L.O. and Mr. Carpov went back out onto the porch where they again smoked and vaped. L.O. had provided Mr. Carpov with a $40 deposit for the cat while they were seated in the living room and, as she now recalls it, she was awaiting a receipt.

[107] Alina arrived home at 4:28 p.m. L.O. testified that she can recall Alina’s arrival and also sending a text message to her friend, Joshua. She recognized that she was becoming very unsteady on her feet and that she felt more intoxicated than she should have been from two glasses of wine. L.O. was an experienced drinker.

[108] L.O.’s memory simply stopped after sending the text. The described the next ninety minutes of her life as a complete blank.

[109] She woke up lying on a bed. She was unable to open her eyes or move but she could feel a man on top of her and could tell that his penis was inside of her vagina. Although she was immediately panicked by her situation, she could not make any movement to escape. She described the inability to move as being akin to what she had previously felt when coming out of anaesthesia. She told herself that she had to move. She raised her arms towards the person on top of her and began to try to scratch him. She said “no” and “stop”.

[110] The man got off of her and said that he was sorry. She could tell by his voice that it was Mr. Carpov. He said “I’m sorry, I’m sorry. I thought you wanted it because you stayed.” He then said “I didn’t go in you.”

[111] L.O. was able to sit up and realized that she was in Mr. Carpov’s bedroom. The clothing on her top half was still in place but she was naked from the waist down. She had no recollection of how she had come to be there. Mr. Carpov left the room and returned a short time later with slices of processed cheese which he handed to her. She reflexively began to eat a slice of cheese and then put it aside. She got dressed and walked out of the room to the porch.

[112] As she sat on the porch, L.O. was trying to process what had happened. She sent a text to her friend Josh saying that she believed that she had been drugged and raped. She angrily asked Mr. Carpov how she came to be in his bedroom and he answered that he had video evidence to prove that she wanted it. He appeared to be worried and asked her not to call the police.

[113] Mr. Carpov handed her a cigarette but her hands were shaking and she accidently dropped it over the railing. He retrieved it for her and she finished the cigarette.

[114] Mr. Carpov stayed on the porch with L.O. until 7:05 p.m. After he left, she put her arms on the railing and laid her head on her arms in an obvious sign of distress. She had a very painful headache. At 7:10 p.m., she attempted to walk down the porch steps but lost her balance and had to sit down quickly to prevent herself from falling. After steadying herself against the two hand railings, she walked to the bottom of the stairs and then collapsed on the front lawn.

[115] As she was sitting on the front lawn, L.O. searched on her phone for information relating to drug facilitated sexual assault. She found a website called Warning Signs That You Have Been Drugged. She stood up at 7:28 p.m. and began to walk up the stairs towards the house. She very nearly fell again. She went into the house, retrieved her purse and walked towards the street.

[116] As she was walking away from the house, L.O. remembered that the DFSA website had recommended that she try to obtain evidence to confirm that she had been drugged. She returned to the house and pretended that she had lost her bus pass. While she was in the house, she found the cheese slice that Mr. Carpov had served to her and put it in her purse.

[117] L.O. left the house and walked directly to a nearby medical clinic where she reported that she had been raped. She was taken to hospital by ambulance.

The Video Evidence of Events That L.O. Does Not Recall

[118] The porch camera shows that Mr. Carpov and L.O. went to smoke at 3:23 p.m. When they went back into the house at 3:36 p.m., L.O. has a glass in her hand. L.O. never described drinking on the porch.

[119] The two went back out onto the porch again at 4:05 p.m. and L.M. is again carrying a glass.

[120] At 4:40 p.m., Mr. Carpov walked from the living room to the kitchen carrying a seemingly empty wine bottle. He returns to the living room thirty seconds later carrying two new bottles. L.O.’s evidence did not include any reference to a second or third bottle of wine.

[121] The dining room camera shows L.O. patting a cat just outside the dining room at 4:54 p.m. She plays with the cat for roughly a minute before Mr. Carpov interrupts her and guides her toward the bathroom. L.O. appears to be in a completely directionless state at this time. As she stands up, she has to hold onto the wall for support. Mr. Carpov holds her arm to direct her into the bathroom and prevent her from falling.

[122] Roughly one minute after L.O. enters the bathroom and closes the door, Mr. Carpov reaches up to the dining room surveillance camera and directs the view of the camera towards his own bedroom. He smiles broadly into the camera after making the adjustment. As he walks away, it appears that he is carrying slices of processed cheese in his left hand.

[123] L.O. comes out of the bathroom at 5:04 p.m. and again appears to be very unsteady. She walks into the living room, picks up her bag and then goes into the bedroom. Mr. Carpov follows her.

[124] Mr. Carpov next appears on camera in the living room at approximately 6:18 p.m. He wanders around the room for several minutes before going back into the bedroom. When he returns to the bedroom, he is carrying something in his hand which resembles slices of processed cheese.

[125] L.O. leaves the bedroom at 6:24 p.m. and walks out onto the porch. Mr. Carpov follows her. The porch camera shows L.O. looking unsteady as she takes a seat on one side of the porch while Mr. Carpov sits on the other. Mr. Carpov is smoking a cigarette and L.M. begins to vape.

The Toxicology Evidence

[126] A blood sample taken from L.O. at 11:45 p.m. on May 26th showed a blood alcohol concentration of 83 mg/100 ml of blood. Based on that reading and employing the customary alcohol elimination rates for a healthy adult, Mr. Palmentier testified that L.O.’s BAC at 5:00 p.m., (the time that she entered the bedroom), would have been in the range of 131 to 218 mg/100 ml. At 6:30 p.m., (the time when she emerged from the bedroom), her BAC would have been 116 to 188 mg/100 ml.

[127] L.O. recalled having drunk roughly ten ounces of wine in the two full glasses that she received from Mr. Carpov. If she had consumed only the amounts of wine that she described in her testimony, her BAC at 11:45 p.m. would be in the range of 35 to 62 mg/100ml, not 83 mg/100 ml.

[128] The very high BAC concentration in L.O.’s 11:45 p.m. blood sample simply cannot be reconciled with the amount of wine that she recalls drinking. If it is assumed that she began drinking at 2:10 p.m. and drank wine with the standard 12.5% alcohol concentration, she would have had to drink 17.2 to 26.4 fluid ounces of wine in order to have a BAC of 83 mg/100ml at 11:45 p.m. That would be the equivalent of 3.4 to 5.3 glasses of wine at the customary volume of 5 ounces per serving.

[129] When police executed a search warrant at Mr. Carpov’s home the following day, they found three bottles of Valerian Tincture on the floor in Mr. Carpov’s bedroom. Mr. Palmentier testified that valerian root is an herbal sedative which is sold in some pharmacies and natural health stores. The CFS did not have any means for testing for valerian in 2015 or 2016 and Mr. Palmentier could not say whether any of the substance was present in the blood seized from L.M. or L.O.

[130] The valerian root that was found in Mr. Carpov’s room was preserved in a tincture of 70% ethyl alcohol. Mr. Palmentier calculated that each of the 48 mg bottles found in Mr. Carpov’s would have contained 51 milligrams of alcohol. If one-half to a full bottle of the tincture had been added to one or more of L.O.’s glasses of wine, it could account for the additional alcohol observed at 11:45 p.m.

[131] In cross-examination, Mr. Palmentier agreed that the tincture has a strong and unpleasant odour and acknowledged that it is doubtful that the tincture would go unnoticed if mixed into a 5 ounce glass of wine.

[132] The toxicological analysis also revealed trace amounts of Nortriptyline in L.O.’s blood. Nortriptyline is a medication which is customarily prescribed for depression but has off label purposes to treat migraines and neuropathic pain. L.O. occasionally took the drug to relieve headaches caused by tension in her jaw muscles. The amount that was present in her blood on May 26th was not of sufficient concentration to have any therapeutic effect and L.O. could not recall when she had last taken the drug. The label on her medication included a warning that Nortriptyline could accentuate the effects of alcohol but L.O. had consumed alcohol on many occasions while taking the drug and never experienced any adverse effect.

Mr. Carpov’s Evidence

[133] Many of Mr. Carpov’s interactions with L.O. were captured on surveillance video and their evidence is generally in accord with respect to those matters. The testimony diverges with respect to conversations and events which cannot be seen in the video. I will focus on those variations in my review of Mr. Carpov’s evidence.

Reasons for Inviting L.O. to Stay

[134] Mr. Carpov initially agreed that when L.O. returned the house with her $40 deposit, he invited her to stay for a cigarette and then for a glass of wine. L.O. testified that he had asked her to stay in order that he could practice his English. L.O. was not challenged on this evidence in cross-examination. Mr. Carpov agreed in cross-examination that he did say something to L.O. about wanting to practice his English but denied that he asked her to stay for this reason. In fact, he denied in cross-examination that he had ever invited her to stay at all.

[135] I accept L.O.’s evidence on this point. She had a clear recollection of Mr. Carpov’s request because her grandmother had also practiced her English by speaking to strangers. She also viewed Mr. Carpov’s invitation as a good opportunity to see the home in which her new cat had been raised. Mr. Carpov was not able to provide any alternative context for this remark or any cogent explanation as to why he had invited L.O. to stay.

[136] Mr. Carpov had obtained a degree from the International Academy of Design and Technology in Canada. The course was taught entirely in English. His tenants spoke English, his daughter spoke English and he had no difficulty in conversing with L.M. in English. I do not believe that Mr. Carpov invited L.O. to stay because of any genuine desire to practice his English.

The Conversation in the Living Room

[137] Mr. Carpov described a free-flowing, humourous conversation between himself and L.O. in the living room. After drinking together for some time, he jokingly said to her “listen, how about you be my girlfriend and I will give you the cat for free?” Her response startled him. As he recalls it, L.O. said “you gotta shave first and then we’ll see.” Mr. Carpov testified that he was “inspired” by this response and it moved him almost immediately to shave.

[138] When he returned from the bathroom, he asked if the shave was satisfactory. L.O. touched his cheek and said “ok, it will do”. Mr. Carpov asked “do I have a chance?” which did not give rise to any response from L.O.

[139] The video from the dining room does show Mr. Carpov entering the bathroom at 2:47 p.m. and then emerging at 2:52 p.m. without a shirt. I do accept that Mr. Carpov shaved but I do not accept that L.O. asked him to do it.

[140] Mr. Carpov was a chronic insomniac. He had not slept at all the night prior to L.O.’s arrival and the surveillance video shows him trying to fall asleep on the dining room floor at 5:00 a.m. It is apparent that he was not at his freshest when L.O. came to the house at 2:00 p.m. When the prospect of intimacy with L.O. arose in Mr. Carpov’s mind, he evidently decided to groom himself. There is nothing in L.O.’s evidence which would suggest that she took the slightest interest in Mr. Carpov’s appearance.

[141] Mr. Carpov testified that he and L.O. became physically closer after he shaved. He put his arm around her at one point as they were playing with a cat and she rested her hand on his knee or thigh. It became obvious to Mr. Carpov that some intimacy was developing between them.

[142] None of the touching that Mr. Carpov described in his testimony is apparent in the video. There is extensive video of the two sitting on the porch, some video from the dining room and a few distant images of the two walking near the bedroom. The only physical contact which appears on the video occurs when Mr. Carpov is directing L.O. towards the washroom or steadying her as she is about to fall.

Events Immediately Prior to Entering the Bedroom

[143] Mr. Carpov testified that he asked L.O. “so did I shave and bath for nothing? Maybe we should just go to the bedroom.” L.O. responded that she had to have a shower first. Mr. Carpov escorted her to the bathroom and, on his evidence, advised her which towel to use.

[144] Mr. Carpov’s testimony on this point must be assessed in light of the dining room video. The video at 4:55 p.m. shows L.O. to be in an apparently vacant state. She is seated on the floor, petting a cat. Mr. Carpov approaches her from behind and directs her towards the washroom. She has to clutch the wall to steady herself as she stands up. Mr. Carpov takes her arm to prevent her from falling as she slowly enters the bathroom. L.O.’s almost catatonic behaviour in the video cannot be reconciled with Mr. Carpov’s description of her advertent, conscious behaviour.

Altering the Angle of the Surveillance Camera

[145] Immediately after L.O. entered the bathroom and closed the door, Mr. Carpov reached up to the dining room surveillance camera and angled the lens towards his bedroom door. Mr. Carpov testified that he did this because he anticipated that he would be having sex with L.O. and he wanted to have a video record of the fact that everyone was behaving in a normal way.

[146] Mr. Carpov testified that it is his practice to treat women with the greatest respect, particularly regarding matters of physical intimacy. He was amazed that L.M. had reported that he had sexually assaulted her after he had treated her with nothing but tender respect. Her allegations had caused untold disruption to his life and that of his daughter. As he contemplated a sexual encounter with L.O., he decided that it would be wise to ensure that a video record existed “just in case”.

Events in the Bedroom

[147] Mr. Carpov testified that after she left the shower, L.O. said “let’s go” and walked into the bedroom. She sat on the bed and asked for more wine. He gave her another glass and they joked for several minutes. She then lay down on the bed. Mr. Carpov asked her if he could lie beside her and she signalled her consent either by winking or by some other look in her eyes. He lay down and they began to caress one another and then kiss.

[148] By this point in the afternoon, Mr. Carpov acknowledged that L.O. was “tipsy”. He testified that she was coquettishly playing with him, inviting him to “solve her like a puzzle.”

[149] Mr. Carpov put his hand under her bra but then stopped and asked (explicitly) for her permission to continue. L.O. did not verbally respond but made a motion with her head which conveyed “why not?” Mr. Carpov proceeded to unzip her pants. She obligingly lifted her hips so that he could remove her pants and underwear. They began to have intercourse. On Mr. Carpov’s account of events, L.O. was extremely passionate and moaned loudly to express her satisfaction.

[150] After several minutes of ecstatic sexual intercourse, L.O. suddenly yelled “stop”. Mr. Carpov was shocked and immediately ceased the intercourse. He asked her what was going on, fearing that he had somehow caused her some pain. L.O. put her hands to her head and said “oh no, I am not like that”. Mr. Carpov asked her what she meant and she said “why am I doing this? I never go to bed with someone when I see them for the first time.”

[151] Mr. Carpov feared that L.O. was not right in the head. He started to say that he was sorry, perhaps he had misunderstood her but she needn’t worry because he had not ejaculated inside of her.

Evidence Regarding Unprotected Sexual Intercourse

[152] Mr. Carpov was asked in chief why he had not used a condom when he had sex with either L.M. or L.O. He explained that he rarely used condoms because they are not 100% effective in protecting against infection. His practice was to use “certain medicines” to prevent infection. He did not ask L.O. if she wanted him to use a condom because to do so would mar the beautiful and aesthetic experience that he sought to establish during sexual intimacy. Mr. Carpov explained that he had devoted a great deal of time to reading books and studying sex in order that he would know how best to satisfy a woman and to ask questions of this nature was, in his opinion, vulgar.

Factual Findings

The Credibility and Reliability of L.O.

[153] The defence quite effectively challenged L.O.’s testimony on a number of fronts.

a. L.O. had a tendency to exaggerate in her evidence. She testified that she had once remained conscious after consuming a 26 ounce bottle of rye in five hours. Mr. Palmentier testified this amount of alcohol consumed in such a short period of time would likely have killed her. She also testified that the $40 deposit that she paid for the cat constituted a month’s worth of groceries to her. L.O. was an impoverished student and no doubt her resources were limited but it seems unlikely that she lived on $1.35 per day for groceries.

b. L.O. only recalled drinking with Mr. Carpov while they were seated on the couch in the living room. She was confronted by video evidence which showed her with a glass in hand on the porch on several occasions. Her evidence did not include any reference to the additional bottles of wine that Mr. Carpov took into the living room.

c. L.O. steadfastly maintained that the only reason that she did not leave the house after Mr. Carpov’s cat-for-sex proposal was that she was awaiting a receipt for her $40 deposit. She claimed that she had twice asked for the receipt and that Mr. Carpov refused to give it. Mr. Ashurov asked L.O. to write out a receipt in the witness box. After she did so, he produced a receipt which Mr. Carpov later identified as a receipt that L.O. had written herself while she was in his home. Mr. Ashurov did not call expert evidence to confirm that the two documents were written by the same person but any layperson would recognize that there are obvious similarities in the handwriting. This very effective demonstration causes me to accept Mr. Carpov’s evidence that L.O. wrote her own receipt shortly after entering the house.

[154] L.O.’s exaggerations did not trouble me. They did not pertain to the essential facts of the case and they were reflective of her unconventional, quirky personality.

[155] L.O. was seemingly estranged from her family. She supported herself by demonstrating video games on-line. Her best friend was a man who lived in Ohio who she only knew through the Internet. She unhesitatingly admitted that she suffers from extreme social phobia. Her self-deprecating nature was apparent throughout her evidence. When asked in chief why she decided to buy the cat, she answered that she played with it for close to an hour and “the cat didn’t hate me”.

[156] It is very likely that L.O. drank more wine in Mr. Carpov’s home than she now recalls. The fact that she underestimated her alcohol consumption puts her in the company of a significant majority of witnesses who testify in criminal trials. L.O. provided a blood sample when she attended the hospital which provides very reliable evidence concerning how much alcohol she actually consumed. The fact that her recollection is not in accord with the forensic evidence does impact on some aspects of the reliability of her evidence but it does not cause me to doubt her credibility.

[157] I accept the defence evidence that L.O. did receive a receipt for her $40 deposit shortly after she gave the money to Mr. Carpov. The only explanation that L.O. has offered for staying at the house after Mr. Carpov’s cat-for-sex proposal was that she was waiting for that receipt. The defence argues that this explanation has been proven false and that the true reason that L.O. stayed at the house was because she had decided to accept Mr. Carpov’s cat-for-sex offer.

[158] It is very common in sexual assault cases to see a moment when a complainant might have extricated herself from a potentially dangerous situation and did not avail herself of the opportunity. Such a moment often forms the focus of the defence challenge to the complainant’s credibility. It is argued that the failure to extricate herself “just doesn’t make sense” and disproves the essence of the complainant’s evidence. This line of argument is rooted in the belief that victims of sexual assault will invariably flee at the first sign of danger and the failure to do so implies consent to whatever follows.

[159] L.O. was clearly unaware of any potential hazard when she was at Mr. Carpov’s home. It was broad daylight, she had her phone in hand and Mr. Carpov’s daughter was in the house. Mr. Carpov presented as a genial and unthreatening host. L.O. was unsettled by Mr. Carpov’s peculiar cat-for-sex proposal but there was nothing inherently menacing in the comment. I do not draw any inference against L.O.’s credibility as a result of her failure to run from the house the moment that the proposal was made. L.O. did not run from the house even after the alleged assault. She emerged from Mr. Carpov’s room in a very unsteady state at 6:24 p.m. but she did not finally leave the house until 7:36 p.m.

[160] The strength of the defence attack on L.O.’s credibility can be measured in part by the plausibility of the contrary position put to her in cross-examination. Mr. Ashurov suggested to L.O. that she had indeed accepted Mr. Carpov’s proposal and agreed to have unprotected sex with this unattractive stranger in order to get a free cat. When this suggestion was put to her, L.O. paused in her testimony, evidently trying to take stock of the fact that the suggestion was being put to her seriously. She finally answered “no” in a quiet, firm tone and then dropped her head on the table before her in astonished disbelief.

The Credibility and Reliability of Mr. Carpov

[161] In the course of my review of the evidence, I have commented on specifics points where I do not accept Mr. Carpov’s evidence. That is also true with respect to the heart of Mr. Carpov’s defence. I do not know believe Mr. Carpov when he says that L.O. was conscious throughout the sexual activity in the bedroom and that she willingly consented to all of his sexual touching. I reject that evidence and find that it could not reasonably be true for the following reasons.

a. Mr. Carpov testified that L.O. was merely tipsy when she arrived in the bedroom. The dining room video shows that L.O. was so impaired at 4:55 p.m. that she had to hold onto a wall to stand up. She was unable to descend a short flight of stairs after leaving the bedroom. When confronted with this video in cross-examination, Mr. Carpov suggested that L.O. was “posing” in the videos in order to fabricate evidence of intoxication. Mr. Palmentier calculated that her BAC was 131 to 218 mg/100 ml at the time that she entered the room. L.O. was not tipsy and she was not posing; she was obviously impaired and Mr. Carpov knew it.

b. I do not believe Mr. Carpov’s claim that L.O. suddenly yelled “stop” in the midst of a passionate sexual encounter and falsely accused Mr. Carpov of sexual assault. Mr. Carpov himself struggled to offer any explanation as to why L.O. would behave in such an inexplicable fashion and ultimately suggested that she must suffer from a mental disorder. There is no evidence of any irrational behaviour on the part of L.O. on May 26th. Her written correspondence with Alina, her behaviour when seen on video and her text communications with her friend Josh all reflect the workings of a rational and well-ordered mind. L.O. gave a statement to the police shortly after the incident and she was not cross-examined on any irrational or delusional aspect of that statement. As a matter of common human experience, there is no reason why L.O. would suddenly change her mind about a consensual sexual encounter and then punish the other party by fabricating an allegation of sexual assault.

c. Mr. Carpov insisted that his encounter with L.O. was a beautiful, aesthetic experience which was characterized by coquettish play and romantic innuendo. He resisted the Crown’s suggestion in cross-examination that her consent should have been confirmed verbally and testified that to ask a woman if she would have sex with him would be “from a life of robots”. He characterized his courtship of L.O. in highly romantic terms which culminated in an exchange of glances that assured him of her consent to sexual intercourse.

Mr. Carpov’s recollections are utterly divorced from reality. He was a 52 year old man with few prospects in life. He was a chronic alcoholic who had been hospitalized on several occasions due to toxic overdoses of alcohol. He lived in a crowded rooming house which could charitably be described as unkempt. His own room within that house was frankly squalid. He was offering stale, cheap wine and processed cheese slices as instruments of seduction. These are hardly the circumstances which one would expect to stir the romantic passions of a 25 year old woman, particularly one who had only come to the house to buy a cat. The evidence disclosed a vast chasm between Mr. Carpov’s perception of the romantic possibilities of such a brief encounter and the realities of normal human behaviour.

Findings Regarding Administering Noxious Substance

[162] The Crown is in a difficult position in arguing for a conviction on the charge of administering a noxious substance to L.O. Blood and urine samples which were obtained roughly six hours after the alleged offence were tested for a vast array of DFSA drugs and none were found. The same biological samples did reveal a high concentration of alcohol which arguably provides a satisfactory explanation for all of the symptoms reported by L.O. L.O. had been awake since 10:00 p.m. the preceding night and her blood showed trace amounts of a prescribed medication which is known to exacerbate the effects of alcohol. L.O. herself acknowledged in cross-examination that the symptoms that she experienced might have been caused by the consumption of alcohol alone.

[163] The Crown relies on similar fact reasoning and argues that it is inherently implausible that both L.M. and L.O. would report black outs followed by unconsciousness almost immediately after drinking alcohol with Mr. Carpov. Neither woman had ever before experienced these effects from drinking alcohol. There are a host of similarities between the recollections of these two wholly independent witnesses which permits the conclusion that Mr. Carpov drugged them both in order that he could sexually assault them while they were unconscious.

[164] The law does permit me to follow the path of reasoning recommended by the Crown. The trilogy of DFSA cases decided by the Court of Appeal in 2007 (R. v. Bell, 2007 ONCA 569, R. v. Fleming, 2007 ONCA 570 and R. v. L.G., 2007 ONCA 571) recognize that a trial judge may be satisfied that a noxious substance was administered based on the report of the complainant alone. This factual finding is available even in circumstances where the evidence does not disclose what drug was administered or in what dose. In this case, there are two complainants who independently report that they blacked out shortly after drinking with Mr. Carpov and were temporarily unable to move once they regained consciousness. The fact that both complainants report that such a rare event occurred immediately after drinking with Mr. Carpov is very persuasive evidence that Mr. Carpov somehow administered a noxious substance to them both. This inference is obviously strengthened by the fact that Mr. Carpov went on to have sex with both women during the time that they report having no memory.

[165] In this case, however, I have found that it is unlikely that Mr. Carpov administered a noxious substance to L.M. The Crown is not obliged to prove that allegation beyond a reasonable doubt in order to rely on it as similar fact evidence but is required to at least satisfy me on a balance of probabilities that a drug was administered. The evidence does not meet that standard. Accordingly, the Crown cannot rely on any inference to be drawn from L.M.’s evidence in establishing the charge in relation to L.O.

[166] As I noted earlier in my review of the toxicology evidence, police located three bottles of Valerian Tincture on the floor in Mr. Carpov’s bedroom on May 27th. Valerian Tincture is an herbal sedative which is sold in some pharmacies and natural health stores. Mr. Carpov testified that he used the herb to calm his central nervous system in order that he could fall asleep. Mr. Carpov was an insomniac at the time of these events. I accept his evidence that he kept the tincture near his bed in order to try to calm himself before sleep.

[167] Mr. Palmentier agreed that valerian tincture has a very strong odour and that it is unlikely that it would go undetected in a glass of wine. He testified that valerian is sold as a sedative but did not confirm that it actually has sedating properties. It would be speculative to conclude that Mr. Carpov put the tincture into L.O.’s wine simply because it was found in his bedroom.

[168] I accept L.O.’s evidence with respect to the symptoms that she felt and her evidence gives rise to a distinct suspicion that Mr. Carpov administered some substance other than alcohol to her. It is clear, however, that L.O. could also have experienced those symptoms as a result of the consumption of alcohol while fatigued or as a result of an antagonistic interaction with the medication Nortriptylin. Accordingly, I find Mr. Carpov not guilty of the charges under section 245(a) and 256(b) of the Criminal Code.

Findings Regarding Events in the Bedroom

[169] Having rejected the evidence of Mr. Carpov and finding that it could not reasonably be true, I am left again to determine if I am satisfied beyond a reasonable doubt based on the evidence that I do accept that Mr. Carpov committed a sexual assault on L.O.

[170] L.O.’s allegation differs from that of L.M. to the extent that she woke up in the middle of the alleged assault. In this case I have direct evidence that the victim was unconscious when the sexual touching began and I am entitled to infer that Mr. Carpov knew that she was unconscious.

[171] I accept L.O.’s evidence with respect to the essential elements of the charge of sexual assault. She came to Mr. Carpov’s home to buy a cat. She had absolutely no romantic interest in him and no matter how impoverished she might have been, she would not and did not consent to sexual intercourse with Mr. Carpov in order to get a free cat.

[172] At an earlier point in the trial, I granted the Crown’s application to permit the cross count application of similar facts in order to prove some of the essential elements of the offences charged. As it turns out, the similar fact ruling did not assist the Crown in proving the essential elements of the noxious substance charges. I was able to make findings with respect to the two sexual assault charges without any need to resort to the similar fact evidence. In my view, the sexual assault allegations were convincingly proven based on the testimony of the complainants, the video and the toxicology evidence.

[173] I am satisfied beyond a reasonable doubt that Mr. Carpov touched L.O. for a sexual purpose and that L.O. was not consenting to the touching. I am further satisfied that Mr. Carpov committed this act intentionally and that he knew that L.O. was unconscious and unable to consent. Accordingly, all of the essential elements of sexual assault have been proven beyond a reasonable doubt and I find Mr. Carpov guilty of sexual assault on L.O.

Peter Bawden J.

Released: December 3, 2018

COURT FILE NO.: CR-17-40000459-0000 DATE: 20181203 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – GHENADIE CARPOV Defendant

REASONS FOR JUDGMENT BAWDEN J. Released: December 3, 2018

[1] This statement was elicited by the Crown in response to the defence position that L.M. had fabricated the allegation of administering a noxious substance. L.M. acknowledged that she had heard a report on CP24 concerning Mr. Carpov’s arrest on charges of sexual assault and administering a noxious substance to a second complainant but testified that this did not influence her evidence. L.M.’s statement to her mother was admitted for the sole purpose of rebutting the suggestion of recent fabrication and not for the truth of its contents.

[2] Mr. Carpov’s evidence regarding the sequence of events in the bedroom was not put to L.M. in cross-examination. Crown counsel noted this failing at the completion of Mr. Carpov’s evidence in chief. Mr. Ashurov responded that L.M. purported to have no recollection of events in the bedroom and so there was no need to put the specifics of Mr. Carpov’s anticipated testimony to her. The matter was ultimately left unresolved and it does not materially impact my factual findings. It should be noted, however, that Mr. Carpov’s anticipated evidence was also not raised in the course of a lengthy and detailed cross-examination of the expert toxicologist.