COURT FILE NO.: CR-18-40000161-0000 DELIVERED ORALLY : 20190220 DATE RELEASED : 20190307 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SHEVON MCKITTY Accused – and – CELDON PARRIS-THOMPSON Accused

Counsel: Martin Sabat, for the Crown David Maubach, for the Accused Shevon McKitty Moshe Micha, for the Accused Celdon Paris-Thompson

HEARD: January 21, 22, 23, 24, 25, 28 and February 20, 2019

REASONS FOR JUDGMENT

Ducharme J.

Introduction

1Shevon McKitty [“Paris”] and Celdon Parris-Thompson [“Scully”] are charged with one count of sexual assault of R.H. They elected to be tried by a Judge sitting without a jury. The following are my reasons for judgment.

Overview of the Case

2The complainant, R.H., met the two accused, Paris and Scully, on a Saturday, June 25, 2016. She spent the afternoon drinking with her friends and the two accused first in a park and then in the home of one of her friends. R.H.’s memory was incomplete as she suffered blackouts through the afternoon and into the night. The group went out to a party where R.H. spent the next several hours dancing. When R.H. was leaving in a cab, she asked her friend to ask Paris and Scully to join her. They returned with R.H. to her home. R.H. ended up naked on her bed with Scully leaning over her. At this point, R.H. said that she did not want to have sexual intercourse. Scully continued to try and penetrate her. The complainant later recalled Paris having oral sex with her and having intercourse with her. R.H. had no memory of what occurred during the blackout periods. The defence submits that R.H. might have consented to sexual contact during the blackout periods and that I therefore cannot convict of sexual assault beyond a reasonable doubt. I accept that R.H. made her non-consent to sexual intercourse clear to Paris and Scully and that she did not change her mind during the blackout periods. Consequently, I would convict both Paris and Scully of sexual assault.

General Principles of Law

3Prior to reviewing the evidence in this trial, I wish to briefly outline some of the fundamental principles of our criminal law that I must apply in this case.

A. The Burden on the Crown

4It is for the Crown to prove beyond a reasonable doubt that the acts alleged occurred and that Mr. McKitty or Mr. Parris-Thompson committed them. Neither Mr. McKitty nor Mr. Parris-Thompson have to prove that the events never happened. Neither Mr. McKitty nor Mr. Parris-Thompson need prove anything.

5The phrase “beyond a reasonable doubt" is not an ordinary expression. It is a term that has been used for a very long time and is an important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is a doubt about an essential element of the offences charged.

6This standard is a formidable one. Proof beyond a reasonable doubt is closer to absolute certainty, rather than a balance of probabilities: see Regina v. Starr (2000), 2000 SCC 40 and Regina v. Lifchus (1997), 1997 SCC 319. In this case, the question of whether the case has been proved beyond a reasonable doubt hinges primarily upon the credibility and reliability of the complainant, R.H. The question is not merely whether I accept the evidence of R.H. Instead, even if I decide that I accept all or part of the R.H.’s evidence, I must still be satisfied beyond a reasonable doubt, on the basis of all of the evidence, that the accused is guilty: see Regina v. W. (D.) (1991), 1991 SCC 93.

B. The Presumption of Innocence

7The presumption of innocence means that Mr. McKitty and Mr. Parris-Thompson started this trial with a clean slate. The presumption stays with them throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that either Mr. McKitty or Mr. Parris-Thompson is guilty of the crime charged. The presumption of innocence also means that Mr. McKitty and Mr. Parris-Thompson do not have to testify, present evidence or prove anything in this case. In particular, neither Mr. McKitty nor Mr. Parris-Thompson have to prove that he is innocent of this crime.

Assessment of Evidence Generally

8It is not proper for a trial judge to simply decide whether or not they believe the evidence of the victim and, on that basis, reach a conclusion of guilt beyond a reasonable doubt. The totality of all of the evidence must be examined in a cumulative way to determine if the victims' evidence is reliable and whether there is a reasonable doubt notwithstanding the apparent credibility of the victim: see R. v. Richardson (1992), 9 O.R. (3d) 194 (C.A.); R. v. M. (P.) (1983), 31 C.R. (3d) 311 (Ont. C.A.).

Significance of Demeanour

9In assessing the credibility of any witnesses it is important for a trial judge to keep in mind the caution of O'Halloran J.A in Faryna v. Chorny, 1951 BCCA 252, [1952] 2 D.L.R. 354 at p. 357 (B.C.C.A.), “[t]he law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses.” It is an error to make a credibility determination based solely on the demeanour of a witness. While the demeanour of a witness is a factor that may be considered, it is only one factor to be considered in the context of a cumulative assessment of all the evidence. As O'Halloran J.A stated in Faryna v. Chorny, supra, at p. 357 (B.C.C.A.):

10The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

11Thus, while I can properly consider any witnesses’ demeanour in assessing her credibility my assessment of her credibility turns on a broader assessment of her testimony. Whether it is consistent, whether it makes sense or is inherently hard to credit, how it ties in to all of the evidence in the case.

Elements of the Offence

12A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements: that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of, or willfully blind to, a lack of consent, either by words or actions, from the person being touched.

13The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The relevant statutory provisions with respect to consent are ss. 273.1 and 273.2 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, which provide as follows:

273.1(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

273.1(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(b) the complainant is incapable of consenting to the activity;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

273.1(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

14In this case, counsel for Scully argues that the Crown has failed to prove that he touched R.H. or that the contact was of a sexual nature. Counsel for both accused contend that the Crown has failed to prove beyond a reasonable doubt that R.H. did not consent to any sexual contact that occurred. In this case, the Crown submits that the evidence proves that the complainant lacked the capacity to consent at the relevant time that she did not consent to the touching that occurred and, in the case of Paris that she was asleep when he initiated the sexual contact meaning that she did not consent to it.

15Quite properly, the defence of honest but mistaken belief in consent was not raised by the defence in this case.

16Issues to be Determined:

17First, the Crown argues that R.H. was too intoxicated to be capable of giving consent to either Scully or Paris. Thus, any sexual contact with R.H. on the part of Paris or Scully would be a non-consensual sexual assault.

18After dealing with the issue of R.H.’s capacity to consent, I will analyze the case against Scully and Paris separately. With respect to Paris the issues to be determined are the following:

(1) Has the Crown proven beyond a reasonable doubt that Paris committed sexual assault by having sexual contact with R.H. that began while she was asleep? (2) Has the Crown proven beyond a reasonable doubt that Paris committed sexual assault by performing oral sex upon R.H. without her consent? (3) Has the Crown proven beyond a reasonable doubt that Paris committed sexual assault by penetrating R.H. vaginally without her consent?

19With respect to Scully, the Crown has two other possible routes to a conviction for sexual assault, which require that the following questions be answered:

(1) Has the Crown proven beyond a reasonable doubt that Scully committed sexual assault by penetrating R.H. vaginally without her consent? (2) Has the Crown proven beyond a reasonable doubt that Scully committed sexual assault by his actions towards R.H. around the time of her assertion of non-consent?

20Finally, the Crown argues that both Paris and Scully are each parties to the sexual assault committed by the other.

The Testimony of the Complainant

21R.H. testified that on June 25, 2016, she went to her friend’s D.’s house around noon. She could not recall if K. was there at the time. Some three to five hours later, Y. arrived with two males, Paris and Scully. Y. then drove R.H., D., Paris and Scully to an LCBO where they all purchased alcohol. They then went to the park around 4 or 5 p.m. where they sat on the bleachers, drank, and talked. R.H. was sharing a bottle of fortified wine with D.. At one point R.H. raced Paris and Scully. Just before they raced, R.H. said “I have my eye on the finish line. I’m going to win”. Paris replied, “Well what if I said that I’ve had my eyes on you since we first met”. R.H. ignored this statement which she did not regard as threatening. After they raced, they continued to drink and talk on the bleachers. After approximately an hour and a half they returned to D.’s house. At this point, R.H. described her level of inebriation as 3 or 4 out of 10.

22At D.’s house, they put on some music and they were all hanging out in D.’s bedroom. R.H. testified that they were all freestyling, rapping, singing, talking and joking. During this time R.H. was also drinking some rum and some Bodacious wine. During this time, she had no concerns with either Paris or Scully as neither was indicating any attraction towards her. At some point R.H. changed into her clothes for the party.

23At approximately 10 or 11 a.m. they all left for the party. At this point R.H. estimated that she had drank between 10 and 15 shots of fortified wine, about 5 shots of Bodacious wine and 3 to 5 shots of rum and she testified that her level of inebriation was 8 out of 10. R.H. admitted in cross-examination that the number of drinks was only an approximation. She testified that Y. drove everyone there in her car. R.H. did not remember the trip to the party. The party was at the Luanda Lounge and it was put on by a collective named MNFSTO. R.H. did not remember when they arrived at the party but estimated that it was between 10:30 p.m. and midnight. All R.H. remembered from the party was dancing on her own for the most part. However, she conceded that she may have danced with Paris or Scully. R.H. did not recall drinking or using any drugs at the party although she conceded that she may have had a drink. R.H. estimated that they stayed at the party for two to three hours.

24The next thing R.H. remembered was D. giving her a twenty-dollar bill and telling her to get into a cab that she assumed D. had flagged and to go home. R.H. saw Paris and Scully outside the cab and she asked D. to ask Paris and Scully to get into her cab. R.H. testified that she did not remember why she did this although she assumed that she felt that one of them was attractive and that she wanted to continue hanging out with them. In cross-examination, R. H. denied that being attracted to someone was the same as wanting to have sexual activity with them. Paris and Scully joined her in the cab. R.H. could not recall who gave the cab driver her address and she remembered nothing else about the ride home. When it was suggested to her that she had kissed and fondled Scully, R.H. replied “I don’t remember.” When it was suggested to her that it was possible, R.H. testified, “Anything could have happened. Anything couldn’t have happened. I don’t remember it all.”

25R.H.’s next memory was that Paris and Scully were in her bedroom and she was stepping into her bedroom carrying in three glasses of mango juice. She had no memory of offering or pouring drinks for Paris and Scully. R.H. had no memory of closing her door. R.H.’s next memory was that she was lying on the foot of her bed with all of clothes off. R.H. did not remember how her clothes came off although she conceded that she had told the police in her videotaped statement that “we all took our clothes off”. R.H. testified that she no longer had a memory of doing this and the reference to the police interview did not refresh her memory. However, she agreed that if she told the police this then it was her true memory at the time.

26R.H.’s next memory was that she was naked lying on the bed with her knees drawn up to her chest. R.H. had no idea how much time had passed since her memory of entering the bedroom with the juice. Her arms were around her legs with the palms facing away from her towards Scully who was leaning over her and pressing into her with his body. R.H. was resisting him with her hands by either touching his chest or his arms. While R.H. did not remember exactly what she said, she testified that she said “No, no, I don’t want it” and that she did not “want to get attached” and that she “was a virgin.” R.H. testified that she was speaking in the same tone as she was testifying. She testified that she mentioned not wanting to get attached because she believed that men believe that women may get overly emotionally clingy after sexual intercourse. R.H. testified that she said she was a virgin because it was true and she was unprepared and unwilling to share that first experience with either Paris or Scully. She said that her virginity was sacred to her and she did not want to lose it that night. R.H. testified that she “didn’t want to have sexual intercourse.” Paris, who was to her left on the bed, said “Yo I don’t think she wants it.” R.H. said Scully glanced at Paris and then said to her, “It is OK, it’ll feel good. Let’s just do it.” R.H. testified that Scully was trying to get between her legs although she could not recall what Scully was wearing. She had told the police in her first statement that Scully was not wearing any clothes. However, R.H. did not remember this fact and the transcript of her police statement did not refresh her memory. R.H. agreed that Scully could not have penetrated her while she was in this position. R.H. testified that she had no memory of Scully penetrating her.

27R.H.’s next memory was speaking to D. on her phone. R.H. had no idea how long the prior blackout had lasted. Scully was still in front of her, although he was no longer leaning on her, and Paris was to the left. She did not remember dialing D.’s number but she recalled telling her “I just lost my virginity.” She did not have a clear recollection of the rest of the conversation although it took less than a minute. R.H. could not remember if this call was on speaker phone or not. R.H. agreed that she felt no pain in her vagina during this telephone call. R.H. testified that she did not ask D. to come over because she was intimidated. R. H. also testified that she could not recall if she had considered calling the police or thought about texting anyone for help. R.H. could also not recall if she thought about leaving her bedroom.

28Shortly after that K. phoned her and asked “what’s going on? Are you okay?” R.H replied “yeah”. K. then asked “Where are you?” and R.H. said “on my bed”, or, “I’m sleeping”, or, “in my room” or something. The call then ended. R.H. explained that she said she was OK in order to remain in control and because she did not want to provoke Paris or Scully by becoming aggressive or rejecting towards them. R.H. could not remember if this call was on speaker phone or not.

29R.H. also had a memory of herself weeping although she could not recall if it was before or after the call with K.. She testified that she was unsure about why she was weeping but said that she felt invaded and unsafe. R.H. testified that either Parris or Scully responded to her crying by saying, “Why are you crying? You’re making us feel like we did something bad.” R.H. replied “Like no, it’s okay, you didn’t do anything bad.” R.H. explained that she said this because she did not want to provoke P or S to do anything worse. R.H. testified that she thought Scully was still there although she conceded in cross-examination that Scully might have been outside of the bedroom.

30R.H. then remembered the feeling of waking up and opening her eyes to find Parris performing oral sex or having intercourse with her. She could not remember the sequence of these two acts. During the oral sex Paris said “I don’t usually do this” or “Don’t tell anybody that I do this or that I like this, but you taste really good”. R.H. did not respond to this. During the sexual intercourse she could not remember whether her legs were on Paris shoulders or on the bed. R.H. admitted that she did not want Paris to do either act but that she did not do or say anything to indicate that. R.H. was not sure where Scully was during these incidents, although she thought he was to her right on the bed. In cross-examination, R.H. said she did not know if Scully was gone before Paris performed oral sex on her and had intercourse with her. She had no memory of Paris ejaculating and she did not find any suggestion of ejaculation the next morning.

31R.H. conceded on cross-examination that she had told the police during her videotaped statement that she remembered giving oral sex to either Paris or Scully. R.H. testified that she no longer had a memory of doing this and the reference to the police interview did not refresh her memory. However, she again agreed that if she told the police this information, then it was her true memory at the time. At the preliminary inquiry, R.H. testified that she had given oral sex to one of them and possibly the other one. When it was suggested to her that she had consented to doing so she disagreed and stated, “I would disagree but that’s definitely controversial, but I would have to say no”. When asked again if it was possible that she consented to the performance of oral sex, R.H. said “It’s definitely possible”. At trial, R.H. agreed that she was testifying truthfully at the preliminary inquiry although she no longer remembered performing oral sex and the reference to the transcript did not refresh her memory.

32R.H.’s next memory was that Scully said he had to go home because his landlord expected him home at a certain time. She estimated this was at about 3 or 4 a.m. and it was still dark outside. As this confused R.H., Paris explained that Scully lived with his mother. Scully then asked for money for a cab and said it was his birthday. R.H. thought Paris gave him some money and Scully left. R.H. agreed that she might have given her and Scully’s addresses to the cab company. R.H. later recalled asking Paris to leave at the same time but he asked her if he could stay until the buses started running.

33R.H. next remembered waking up between 8:30 and 10 a.m. Paris was lying behind her. He had his arm around R.H. and was cuddling her. She turned to see him and he kept his arm around her and said “Hush, hush, hush”, “Just chill, chill, chill. Don’t start freaking out again, just hold me back like you mean it. Don’t start tripping like you were last night”. Although R.H. could not remember her exact response, she said something like, “I just want you to leave” or, “I just want you to go”, or, “I just want you to go home”, or “just take the bus”, or “I just want you out of my room”. Paris dressed, used the washroom, put on his shoes, and left. R.H. agreed that she may have told Paris where to catch the bus and where he could get some breakfast. R.H. also agreed that her roommate, Alex, was in the living room the next morning and she agreed that she may have introduced Paris to him.

34After Paris left, R.H. testified that she texted D. who invited her to come and shower at her house. R.H. showered, changed into new clothes, and left her house. She also went to a drugstore and took an emergency contraceptive pill. That evening R.H. performed at a show with D. and K..

35Two weeks after the incident R.H. had a migraine, a sore throat, and was feeling fatigued. So she went to a Sexual Health clinic to be tested for sexually transmitted infections. R.H. testified that she realized how unfair the situation was, as she had been violated and now had to deal with the consequences by herself. R.H. admitted that she had discussed what had happened with 10 to 15 people. She also spoke to a friend who raised the possibility that Paris and Scully might do this to someone else. This persuaded R.H. that she should report the incident to the police.

36R.H. gave a videotaped statement to Detective Kinghorn on July 10, 2016. R.H. denied the suggestion that she had confused what had happened with the details of what she had been told by others.

37Sometime during the next two months R.H. saw Paris at Wellesley subway station. In cross-examination, R.H. agreed that her testimony at the preliminary inquiry that this meeting was within two to three weeks of her interview was correct. She got off the subway and Paris did as well. Paris said he wanted to talk to her. R.H. agreed that they sat down at a bench and spoke for 45 minutes. In cross-examination R.H. agreed that she was not timing the meeting and testified that it was twenty to twenty-five minutes long. R.H. agreed that she had made no notes of their conversation during or afterwards.

38R.H. wanted to know why both Paris and Scully had persisted when she resisted and said no. She also asked why they were avoiding calls from her friends. Paris replied that he had not received any calls. R.H. did not remember exactly what else Paris said but she testified that he said that these things happened sometime when people get drunk and don’t know what they want. Paris suggested that it was not a big deal and said that she should not take it personally. They exchanged telephone numbers and went their separate ways. R.H. could not recall whether she had suggested they exchange numbers or whether Paris had.

39Paris texted her over the next week and after a few days she texted back “What do you need?” “How can I help you?” Paris replied that she was being immature for giving him her number but not texting him back. R.H. replied with words to the effect of “Immature is having sex with girls that are asleep and/or unconscious, and don’t ever text my phone again”. This was the last time R.H. communicated with Paris. R.H. admitted that she had not copied their texts and that she had no way of recovering them now. R.H. agreed that she did not mention this meeting with Paris until the preliminary inquiry which took place of February 26, 2018.

40R.H. lived in the lower level of a house and had two roommates, Christopher and Alex, both of whom she believed were in their rooms when she arrived home. It was a small apartment and included a living room with a couch and a chair outside of the bedrooms. R.H.’s bedroom was next to Alex’s bedroom and there was a door between the two rooms.

Other Evidence in the Case

41There was other evidence that was called in this case as well as two agreed statements of fact. I need not refer to these in any length. Renata Dziak, a forensic biologist from the Centre for Forensic Science, testified. The only relevant point of her testimony was that semen was found in the crotch of the leggings R.H. wore the day after the alleged assault and a DNA analysis suggested that Paris could not be excluded as the donor. No semen or DNA was found from Scully although she could not say why this was. She testified that it was possible that DNA from a second male was there, but it was insufficient to test.

42Det. Kinghorn testified about a variety of things including the cellphone records of both accused that indicated that they had changed their numbers after Det. Kinghorn had spoken to Paris. The Crown wanted to lead this information as after the fact conduct indicative of consciousness of guilt. Given the other available explanations for this, I do not regard this as being probative with respect to guilt.

43Mr. Maubach called two defence witnesses to testify about Paris’s attempt to turn himself in and to provide another explanation for his changing his phone number. Given that I do not view the evidence about the phone numbers to be particularly probative of anything, I need not consider this any further.

Assessment of the Complainant’s Testimony

44I found R.H. to be a very credible and fair witness. She testified without any hesitation or defensiveness. She did not embellish and did not appear vindictive. She readily admitted details that did not help her case and which would have been very simple to lie about, such as having no memory that Scully had penetrated her. Her fairness to the accused was perhaps best exemplified when she repeatedly said in cross-examination that “anything could have happened” during a blackout period. Most importantly, as I shall explain below, she was not contradicted in any materially significant way. When I say I found R.H. to be credible, I mean that I believe that she testified truthfully as to her recollections of that evening.

45In making the foregoing determination, there were several other matters that I had to consider. First, the defence argues that there were inconsistencies in her evidence. There were few of these and they either involved her using different language or mentioning something that she had not previously. For example, she readily admitted that she had described her virginity as “sacred” for the first time at trial. I regard this as a semantic issue. Far more importantly, she had previously testified that she did not want to share her virginity with either Paris or Scully. She also acknowledged that she had not described Scully turning his head towards Paris when the latter said “Yo, I don’t think she wants it” before the trial. But this is a minor detail and I note that she said that she was “pretty sure” that Scully glanced at Paris. I also note that she was not previously questioned about whether Scully had looked at Paris.

46Second, the defence argues that I should not rely on R.H.’s testimony because she does not have a complete memory of whatever was said throughout the evening. I think this is understandable given her inebriation on the night in question and the passage of time since then. She readily admitted that her memory was not crystal clear but that she had a clear recollection of what had happened to her when she was not blacked out. I accept her evidence in that regard.

47Third, the defence suggests that several details of her account simply do not make sense. They ask why R.H. did not simply yell out to wake up her roommates. They argue that if she had been sexually assaulted that she could have told D. when she phoned her or that she could have used her phone to call the police, either in the bedroom or in her bathroom. They also point to the fact that, after she cried, either Paris or Scully said “Why are you crying? You’re making us feel like we did something bad”, to which R.H. replied, “Like no, it’s okay, you didn’t do anything bad”. The defence also suggests that it makes no sense that R.H. permitted Paris to spend the night in her bed or that she might have introduced him to her roommate the next morning.

48In my view, one must proceed very carefully when assessing the actions of a sexual assault complainant. Certainly, one can consider what she did or did not do before, during and after the alleged assault, and whether her actions makes sense in the context of a particular case. But one must not bring preconceived notions of how someone who is being sexually assaulted would behave. For example, not all sexual assault victims would cry out in an attempt to prevent their sexual assault. I find the foregoing points are readily explainable by the fact that R.H. was inebriated and simply did not consider asking D. for help or going to her washroom to call the police. I also find that these actions are explained by the fact that she testified that she felt intimidated by Paris and Scully and she did not know how they would react to her responding in a more negative fashion.

49Fourth, the defence points to the chance meeting that R.H. had with Paris at the Wellesley subway station some two to three weeks following her videotaped interview with the police. They ask why she would talk to Paris at all. They suggest that it is not credible that she would give her phone number to a man who had sexually assaulted her. Finally, given that R.H. had the contact information for Det. Kinghorn, the officer in charge of the case, and she knew that the police were looking for Paris and Scully in order to arrest them, they question why R.H. would not have mentioned this meeting or provided Paris’s phone number to Kinghorn. They point out that this delayed the arrest of Paris and Scully for several months.

50I am not troubled by the fact that R.H. decided to speak to Paris at the Wellesley subway station. She felt safe there with other people around and she was still trying to figure out what had happened to her. I do find it curious that R.H. would give Paris her phone number, but this does not undercut her credibility. I note that she responded coolly to Paris’s subsequent texts and they ended relatively quickly. I think R.H.’s failure to pass on Paris’s number right away to the police is peculiar given that she had already gone to them with a complaint of sexual assault. It is even more difficult to understand because R.H. was not asked at trial why she did not immediately contact the police. But I do not regard this as reflecting any ambivalence about whether she had been sexually assaulted. That suggestion does not accord with the fact that, following this meeting, R.H. testified at both the preliminary inquiry and the trial. It appears that R.H. simply did not regard this chance encounter with Paris as being particularly important.

51However, R.H.’s reliability is considerably more problematic. Due to her blackouts, she has no memory of what happened for most of the evening. It is important to note that she testified that she had no memory of what had happened during these blackouts and that she could not say whether she was conscious or unconscious during them. However, R.H. does have some memories that are clear and, in large part, was not challenged on these beyond the point that they are not perhaps as complete as they could be. With this limitation, I accept that R.H.’s memories are accurate except as I shall explain below.

The Capacity of R.H. to Consent

52In the context of sexual assault, the capacity to consent is straightforward and is a factual issue to be decided by the trier of fact. A person has the requisite capacity where she has the ability to understand and agree (or not agree) to engage in the sexual activity in question. This is not a cognitively complex task. In R. v. Jensen, 106 CCC (3d) 430 (Ont. C.A.) at p. 437, Rosenberg J.A. spoke of the “minimal capacity required to consent (or withhold her consent) to the sexual activity”. In R. v. A.A. (2001), 155 C.C.C. (3d) 279 (Ont. C.A.), dealing with lack of capacity based on intellectual disability, the Court stated, at p. 282:

53Our law states that no consent is obtained where the complainant is incapable of consenting. A valid consent is an informed consent. Therefore, the individual must be able to understand the risks and consequences associated with the activity to be engaged in.

54In R. v. Patriquin (M.A.), 2004 NSCA 27, 221 N.S.R. (2d) 370 at 374 (N.S.C.A.), Chipman J.A., adopted as correct a passage from R. v. Dennison (2002), 2002 NSSC 222, 208 N.S.R. (2d) 230, at para. 50 (S.C.):

55... in order to be found to have lacked the capability of consenting, the complainant must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate.

56As the requisite capacity for consent is minimal, it has been suggested in a few cases that for a complainant to lack capacity, she must be insensate or an automaton.11 But in R. v. Esau, 1997 SCC 312, [1997] 2 SCR 777 at p. 298, Justice Major, in discussing the availability of the defence of honest but mistaken belief, seemed to reject the suggestion "that the only time a person is legally incapable of giving consent is when they are intoxicated to the point of unconsciousness". This view was also more recently rejected in R. v. Siddiqui, [2004] B.C.J. No. 2690, at para. 55 (S.C.), where Justice Bennett said the following about capacity to consent to sexual activity:

57Therefore, the test is not one of automatism or even one of being unconscious or insensate, although all of those states would result in incapacity. In order to be incapacitated, due to whatever reason, the complainant must be unable to understand the risks and consequences associated with the activity that she or he is engaged in. The complainant must understand the sexual nature of the act and realize that he or she could choose to decline to participate.

58I agree with Justice Bennett and I adopt her reasoning in this regard. The question is whether or not the complainant was able to make a voluntary and informed decision, not whether she later regretted her decision or whether she would not have made the same decision if she had been sober.

59I accept R.H.’s evidence that she was quite intoxicated. Indeed, she testified that her level of intoxication was 8/10 where 10 is the highest level. But she was able to engage in a broad range of activities during the evening in question. After they left the park she went to D.’s where they continued to drink, to talk and to freestyle. She then changed her clothes and went to the party where she spent the evening dancing. She then got into a cab and asked D. to invite Paris and Scully to join her in the cab. When she got home, she opened the door to her house, offered Paris and Scully a drink and carried 3 glasses of mango juice into her bedroom where they were. I also note that there is no evidence that, during the evening, any of her friends did anything to express their concern with her level of intoxication.

60Certainly, R.H.’s blackouts are evidence of her inebriation. A blackout may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether a complainant was or was not capable of consenting at the relevant time. But, at least in this case, evidence of a blackout, without more, is not evidence of an incapacity to consent. R.H. testified that she could not say if she was awake or conscious when she was having a blackout. She also testified that she could not remember what had happened during these periods and she repeatedly said that “anything could have happened”. Therefore, given all the other things that R.H. was doing that evening, I cannot be satisfied beyond a reasonable doubt that R.H. lacked the capacity to consent to sexual contact.

Did R.H. Consent to Sexual Activity?

61The actus reus of sexual assault is sexual touching, without consent. The burden is on the Crown to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. There is no burden on the defence to establish consent or even raise a reasonable doubt about it.

62In a sexual assault case, it is important to emphasize the subjective nature of consent. As Justice Major stated in Ewanchuk, [1999] 1 S.C.R. 330 at p. 494:

The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: [citations omitted].

for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective. The approach is purely subjective. [Emphasis added.]

63Thus, the question I must determine is whether R.H. consented to any sexual contact and, if so, what sexual contact she consented to.

64R.H. testified that she did not want to have sexual contact with either Paris or Scully. But R.H.’s only memory of any discussion about sexual contact was when she was lying on her back with her knees on her chest and her arms around her legs. She described herself as resisting Scully who was leaning over her. While R.H. did not remember exactly what she said, I accept that she said “No, no, I don’t want it” and that she did not “want to get attached” and that she “was a virgin”. Her verbal declaration of non-consent was supported by the position of her body and her movements at the time. R.H. did not have a memory of saying no at any other time.

65R.H. said “I don’t want it” and she referenced the fact that she was a virgin. She testified that she “didn’t want to have sexual intercourse”. I accept this testimony and find that R.H. clearly was not consenting to sexual intercourse. However, I am not satisfied that she was withholding consent to any form of sexual contact. I also find that R.H.’s declaration of non-consent, while directed at Scully, was general, i.e. she did not want to have intercourse with either Paris or Scully. Paris’s comments in response, “Yo I don’t think she wants it” make it clear that he knew R.H. was not consenting. Similarly, Scully’s continued importuning, “It is OK, it’ll feel good. Let’s just do it” suggests that he too understood that R.H. was not consenting.

66However, this does not end the matter with respect to consent. Both Mr. Maubach and Mr. Micah suggest that R.H. might have changed her mind during one of the blackout periods. In this regard, they rely on passages from R.H.’s cross-examination such as these:

Q. … I’m suggesting to you that you were in the back of the cab, you were starting to kiss, fondle, mutual, between yourself and Scully. Isn’t that right? A. I don’t remember. Q. Okay. So it’s possible that you did? You just don’t remember, is that right? A. Anything could have happened. Anything couldn’t have happened. I don’t remember it all. Q. ...whether you had sexual contact with Scully in the cab, in the back seat of the cab, kissing, feeling each other and that kind of thing in a sexual way? You don’t -- that could have happened, you just don’t remember. A. I don’t remember the cab ride at all. Q. But that could have happened, right? A. Anything’s possible. Q. And you don’t know -- you -- you took your clothes off I assume? A. I don’t know. Q. You might have, you might not have, you.... A. I don’t know if I did, but my clothes were definitely off. Q. So anything could have happened that blackout? A. Exactly. Q. And I’m going to suggest to you it’s possible that you said to either Paris or Scully on June, 2016, that you were allergic to latex and not to use a condom, is that possible? A. Sure, that’s -- anything’s possible, but I don’t remember saying that. Q. You may -- but you may very well have said that to them? A. I might have not, I might have, yeah. Q. You’re not sure? A. I don’t remember. Q. Now before the moment that -- of having this blocking and -- and persisting, you agree with me that it’s possible that before that there were kissing between you, touching of intimate parts with -- of each other with your hands? A. I don’t know. Q. It’s possible? A. Anything’s possible [Emphases added.]

67They both strenuously submit that the possibility that R.H. might have consented means that I cannot find beyond a reasonable doubt that any sexual contact that occurred was non-consensual. This requires an assessment of the significance of R.H.’s blackouts and the possibility that she might have consented during one of them.

68R.H.’s blackouts represent periods of time of which she has no memory. In cross-examination, R.H. described them in the following exchange:

Q. And so it’s fair to say that your memory was not complete? A. There were black -- there was blank spaces in my memory, yes. There were holes. Q. So the following morning, when you think what happened before, you have no complete memories of what happened, right? A. I remember only what I remember and then there are times and spaces that I do not remember but I know that time had elapsed and passed.

69R.H. was not challenged on the existence of the blackouts or on their effect on her memory and I accept her testimony in that regard. Once it is established that R.H. cannot remember what happened during a period of time then, as a matter of logic, she cannot dispute any suggestion no matter how speculative or far-fetched. But R.H.’s concession that “anything could have happened” or “anything’s possible” is not evidence that any particular thing did in fact occur. This concession has extremely limited probative value. Indeed, it does not raise the possibility of any particular thing occurring during the blackout period beyond mere speculation. But, of course, it is not the proper function of a trial court to speculate about factual scenarios that do not arise on the evidence. However, while I have no direct evidence of what occurred during R.H.’s blackouts, I must look to other evidence to determine whether it supports any inferences as to what might have happened during these black outs.

70R.H. conceded that she had told the police in her videotaped statement that “we all took our clothes off”. R.H. testified that she no longer had a memory of doing this and the reference to the police interview did not refresh her memory. However, she agreed that if she told the police this then it was her true memory at the time. The fact that she is voluntarily undressing with Paris and Scully supports the inference that she was prepared to consent to some sort of sexual activity. However, in deciding what inferences can be drawn from this, I note that this occurred before R.H.’s declaration of non-consent to intercourse. Consequently, I cannot infer from this that R.H. changed her mind after her declaration of non-consent or that she subsequently consented to intercourse.

71Similarly, R.H. conceded that she had told the police in her videotaped statement that she remembered giving oral sex to either Paris or Scully. R.H. testified that she no longer had a memory of doing this and the reference to the police interview did not refresh her memory. However, she again agreed that if she told the police this, then it was her true memory at the time. At the preliminary inquiry, R.H. testified that she had given oral sex to one of them and possibly the other one. When it was suggested to her that she had consented to doing so, she disagreed and said “I would disagree but that’s definitely controversial, but I would have to say no”. However, when asked again if it was possible that she was consenting to the performance of oral sex she said “It’s definitely possible”. At trial, R.H. agreed that she was testifying truthfully at the preliminary inquiry although she no longer remembered performing oral sex and the reference to the transcript did not refresh her memory.

72The probative value of R.H. agreeing that it is possible that she performed oral sex on Paris and/or Scully is extremely limited. As discussed above, she is referring to a blackout period, a period for which she has no memory whatsoever. Her initial disagreement with the proposition that the oral sex was consensual is not evidence that it occurred and was non-consensual because she does not remember it or the circumstances surrounding it. Similarly, her concession that “it is definitely possible” that it was consensual is not evidence that it did occur and that she did consent. This is more accurately understood as her saying that she cannot say whether or not she performed oral sex on Paris and/or Scully and, if so, whether she did consent because she has no memory of the relevant time. Even if this was evidence that she consented to performing oral sex, it is not evidence that she consented to any other sexual contact. The other difficulty in drawing any inferences from this is that there is no evidence as to when this oral sex might have occurred. Consequently, I cannot infer from this, even taken together with R.H. getting undressed with Paris and Scully, that R.H. changed her mind after her declaration of non-consent or that she subsequently consented to intercourse.

73Far more helpful to my determination of what might have happened during the blackouts was R.H.’s testimony that “my virginity was very like sacred to me at that point in time” and that “I was unprepared to share that first experience with either of them, unprepared and unwilling”. Her testimony that she was a virgin was not challenged nor was her suggestion that she did not want to share this first experience with Paris or Scully. I accept her evidence in this regard. It would not be proper to generalize and draw conclusions about whether or not a virgin would consent to sexual activity in a case like this. However, I can consider R.H.’s perspective on her own virginity and how it might impact the likelihood that she would subsequently change her mind about consenting to sexual intercourse. I find that her initial declaration of non-consent was clear and emphatic and her perspective on her virginity rings true and provides a compelling reason for her not to agree to have sexual intercourse with either Paris or Scully. Therefore, I find that R.H. did not subsequently change her mind during one of the blackout periods and consent to sexual intercourse with either Paris or Scully.

74In conclusion, I find that while R.H. might have consented to some sexual contact with Paris or Scully, she clearly did not consent to having intercourse with either of them.

Did Paris Commit Sexual Assault?

75R.H. testified that she remembered waking up to find Paris performing oral sex on her and that she woke up to find him having intercourse with her although she could not recall which happened first. Certainly, if R.H. was asleep when Paris commenced this sexual contact, it would be a sexual assault as “an individual must be conscious throughout the sexual activity in order to provide the requisite consent”. The difficulty I have here is with the reliability of R.H.’s memory of waking up. In the circumstances of this case, I cannot accept that this establishes that she was asleep before the memory, especially since, as R.H. conceded, she cannot say whether she was awake or asleep during a blackout period. Thus, I cannot conclude beyond a reasonable doubt that Paris was guilty of sexual assault because he commenced these sexual acts when R.H. was asleep.

76I have found that R.H. had both verbally and physically indicated that she did not want to have sexual intercourse with either Paris or Scully and that they both had understood this. I have also found that R.H. did not change her mind about having sexual intercourse with either Paris or Scully during her blackout periods. Given that I have also found that R.H. might have consented to some sexual contact with Paris or Scully, I am not satisfied that Paris performing oral sex on R.H. is a sexual assault. However, I have no such doubts about the sexual intercourse. R.H. made it clear that she did not want sexual intercourse with Paris, he clearly understood this. R.H. did not subsequently change her mind which means that the subsequent act of intercourse was a sexual assault.

Did Scully Commit Sexual Assault?

77R.H. testified that she did not remember if Scully had penetrated her. She also testified that:

I don’t remember the moment of penetration, but I do remember just ending up like with my -- my muscles and my body relaxed, and he was on top of me still. And so I -- I can’t remember when he was going in and out of me, but I -- I remember - -I just -- like it’s -- it’s my body. Like I could – I could -- I felt it after and I just -- I knew -- I knew it had happened even though I guess had mentally been absent.

78R.H. could not remember what S was wearing. She did not feel any pain after this. She did say at a later point to D. that she had just lost her virginity. She also recalled crying at some point after the telephone conversation with D.. She did not recall Scully ejaculating and she did not discover any evidence of ejaculation the next day. She also did not remember seeing any blood on the bed. The telephone call with D. certainly suggests that she believed that she had been penetrated and this could also explain her crying after the call.

79However, given the nature of R.H.’s blackouts and her admission that she did not recall Scully penetrating her, despite her assertion that she knew it had happened, I am not satisfied beyond a reasonable doubt that she had been vaginally penetrated by Scully.

80However, the question of penetration does not end the matter. The relevant portions of s. 265 of the Criminal Code provides as follows:

265 (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; and (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.

81So the question remains whether Scully otherwise applied force to R.H. directly or indirectly or whether he threatened to apply force to her. Certainly, the fact that R.H. was naked lying on her back, R.H.’s comments and the nature of both Scully’s and Paris’s comments would establish the sexual nature of any contact that occurred.

82R.H. described Scully as leaning on her hands with his upper body. Scully was leaning into her and pressing into her with his body and she was resisting with her hands and resisting the pressure he was applying. Her hands were in contact with his chest or his arms. In cross-examination she conceded that she could not remember what part of his upper body was in contact with her. She said there was a distance between their faces. R.H. conceded that Scully did not use his hands to put her hands down nor did he use his hands or his legs to spread her legs. Scully did not try to kiss her and she did not remember him touching her vagina with his hands. R.H. could not remember what Scully was wearing and she could not see his legs. However, R.H. did testify that Scully was trying to get her out of the position she was in, he was trying to get between her legs and she said she believed he was trying to penetrate her. In cross-examination by Mr. Micah she testified:

83He tried to touch my body with his body, but he -- he was -- he was leaning on me with his upper body trying to get me to put my guard down so that he could touch my breasts, so that he could penetrate me, so that he could do whatever, so that we could have sexual intercourse. So I say, I don’t remember him using his hands trying to pry my hands open or using his legs, but that was his goal. That was his objective. That was why he was leaning on me and using persuasive words, and ignoring his friend’s suggestions.

84R.H. agreed in cross-examination that she remembered this interaction lasting about one minute, although it is apparent that the contact between them would have started at some point before the end of the prior blackout.

85It is clear from R.H.’s testimony that Scully was having contact with her at the time of her verbal declaration of non-consent. The sexual nature of this contact is made out by the fact that R.H. is naked; the nature of R.H.’s comments; the comments of Paris and the comments of Scully. While Scully may not have penetrated R.H., he was having contact with her at a time that she was verbally and physically resisting and he was trying to penetrate her even though she was clear that she did not want him to do so. While R.H. may have been prepared to consent to some sexual contact as evidenced by her undressing with the two men, she made it clear that she was not consenting to what Scully was doing at this point and he nonetheless persisted. On this basis I am satisfied that the Crown has proven Scully guilty of sexual assault beyond a reasonable doubt.

Are Paris or Scully Parties to the Sexual Assaults Committed by the Other

86Section 21 of the Criminal Code provides as follows:

Parties to offence

21 (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.

Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

87Aiding is defined as helping another person commit an offence by doing something or failing to do something that it was one’s duty to do. Abetting is defined as encouraging another to commit an offence by words, conduct, or by both. On the evidence before me I find that both Paris and Scully were present when the other one was sexually assaulting R.H. But mere presence at a crime does not make one a party to the crime. Neither did anything to aid the other in their sexual assault. Similarly, neither man abetted the other. Indeed, Paris cautioned Scully against having sexual intercourse with R.H. Therefore, I find that neither Paris or Scully were a party to the offence committed by the other.

Verdict

88Stand up please gentlemen:

89Mr. McKitty on the sole count of the indictment, I find you guilty of sexual assault beyond a reasonable doubt.

90Mr. Parris-Thompson on the sole count of the indictment, I find you guilty of sexual assault beyond a reasonable doubt.