R. v. T.W., 2019 ONSC 4028

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R v. T.W., 2019 ONSC 4028

COURT FILE NO.: 1119/18

DATE: 2019 06 28

B E T W E E N:

HER MAJESTY THE QUEEN

Carla Agatiello, for the Crown

• and -

Randall D. Norris, for the Defendant

T.W.

Defendant

HEARD: May 14, 15, 16, 17 and 21, 2019

REASONS FOR JUDGMENT

PUBLICATION BAN

An Order has been made pursuant to s. 486.4 of the Criminal Code directing that the identity of the complainant and any information that could disclose such identity shall not be published or broadcast or transmitted in any way.

Fowler Byrne J.

1The accused T.W. has been charged with sexual assault contrary to s. 271 of the Criminal Code. This charge stems from activities that occurred from the evening of April 8, 2017, to the morning of April 9, 2017.

2Briefly, the Crown maintains that the accused sexually assaulted C.R. on that evening by knowingly having non-consensual vaginal and anal intercourse with her. Mr. T.W. concedes that he had vaginal intercourse with C.R. that night, but maintains it was part of a consensual sexual encounter between him, C.R., and his wife, Ms. A.R..

Factual Background

3For the most part, the facts regarding that evening are not in dispute. Where there is disagreement, I have laid out the conflicting evidence of each relevant witness.

4The Crown presented their case through the following witnesses: the complainant C.R., her brother J.A., J.A.’s wife (and Mr. T.W.’s sister) T.A., C.R.’s mother B.A., C.R’s son L.R., a registered nurse at Chantal’s Place, Connie Stevens, who did a sexual assault examination on C.R. on April 9, 2017 and a biologist Alison Morris from the Centre of Forensic Sciences who analyzed the samples taken by Ms. Stevens.

5Mr. T.W. presented his defence through his own evidence, the evidence of his mother C.W. and the evidence of his wife, A.R.. Mr. T.W. and his wife have been separated since the fall of 2017.

April 8, 2017

6In the late afternoon of April 8, 2017, Easter weekend, the complainant C.R. contacted her brother J.A. to inquire if he had any plans for the evening, and to see if he would like to get together with her, their mother B.A., and C.R.’s son L.R. J.A. advised that he already had plans with his brother-in-law, the accused Mr. T.W., to have dinner and to watch a hockey game at Mr. T.W.’s home. He invited her to come along. C.R. agreed to come.

7Although they were siblings, J.A. and C.R.’s family had been estranged for about twenty years. C.R. and J.A. had started seeing each other again about a year or two before the incident.

8As a result of rekindling her relationship with her brother, C.R. had an opportunity to meet Mr. T.W. (her brother’s brother-in-law) and his wife Ms. A.R.. She had never been at the couple’s home before the night in question, but had met Mr. T.W. on a few occasions, once when he was about 10 years old, once at her brother’s wedding, once at the baptism of Mr. T.W.’s child, and approximately five times in the previous year at her brother’s home. She recalls that she may have exchanged messages with him through Facebook, had him over to her house once at her brother’s invitation, and obtained an auto part from him for a friend. She believes she may have messaged him when the family went on vacation.

9At the time of the incident, Mr. T.W. and Ms. A.R. lived in a townhome with their son, who was approximately five years old and their daughter who was between one and two years old. Mr. T.W.’s mother, C.W., also lived with them.

10J.A. and T.A. arrived before C.R. C.R. arrived around 6:00 p.m. with her mother and son. When she arrived, P., a friend of Ms. A.R., was also there with her daughter, who was about five or six years old.

11When C.R. arrived at Mr. T.W.’s house, she went to the kitchen and assisted Ms. A.R. in cooking dinner. Ms. A.R. recalls that J.A. was in and out of the kitchen all night.

12All witnesses agreed that everyone in attendance that night was drinking alcohol except T.A. and the children, including L.R.

13J.A. brought a bottle of Crown Royal whisky and offered it to C.R. to mix with ginger ale. C.R. recalls having her first drink within a half hour of arriving. J.A. agreed that he brought a 26 oz bottle of Crown Royal and shared it with C.R. He stated that one-half of the bottle was consumed that evening. He also agreed that the first few drinks he prepared for C.R. were measured with one shot of whiskey in each. He told C.R. to try one with two shots, which he did for her third drink. He believes she measured out a few drinks for herself as well. C.R. gave evidence that she had three drinks of Crown Royal and ginger ale that she measured out herself between the time that she arrived and when her mother and son left around 9:00 p.m.

14Mr. T.W. is known to be a tequila drinker. At one point in the evening it was proposed that C.R., J.A., Mr. T.W., and Ms. A.R. all do a shot of tequila, which they did. C.R. recalls only drinking part of one shot and putting the rest aside. She and J.A. recall that Mr. T.W. had tequila as well, and both witnessed him drinking tequila that night straight from the bottle. J.A. stated that shots of tequila were placed out on the counter, and he saw lots of people doing those shots, and that Mr. T.W. would have a shot with anyone who wanted one. J.A. indicated that he saw C.R. drink two shots of tequila. Ms. A.R. only recalls seeing C.R. doing one shot.

15Mr. T.W.’s recollection is that C.R. was having Crown Royal whiskey and tequila but he did not know how much she was having. He stated that he was not watching what each person was having, but suspected that C.R. probably had a few drinks. When asked who was drinking the tequila, Mr. T.W. indicated that he, his wife Ms. A.R., C.R. and perhaps J.A. had a few shots. When he was asked how many shots C.R. had, Mr. T.W. stated that it was more than one. When further questioned, he admitted that he only saw C.R. do one full shot, but disputes that she only sipped it and set it aside. After that, he simply poured the shots and left them on the counter for whoever wanted them. He did not see C.R. drink any further shots.

16At one point in the night, prior to 9:00 p.m., a drink spilled on C.R.’s shirt in her breast area. Mr. T.W. used his hand to brush the area as if he was cleaning off the spill. C.R. did not consent to that touching. She does not recall that Mr. T.W. said anything but she does recall that her brother said something in anger towards Mr. T.W. when he touched C.R. in that manner. J.A. gave evidence that he “gave crap” to Mr. T.W. for wiping a spilled drink off his sister’s chest with his hand. J.A. indicated that he felt it was inappropriate. B.A. stated that at some point in the night she heard her son J.A. say “keep your fucking hands off” and believed that it was directed to Mr. T.W. when he had touched C.R.’ breast area. In his examination-in-chief, Mr. T.W. admits that he did this and that it was inappropriate conduct on his part, and recalls that J.A. made some type of comment at him when he did.

17Sometime around 9 p.m., C.R.’ mother indicated that she wanted to go. She had spent her evening speaking to C.W. who then wanted to go to bed. C.R. left the townhouse with her mother and her son but was frustrated and did not want to go. She stated she was having fun and was not ready to go. Before they drove away, C.R. and her mother argued about whether to stay or go. Eventually they decided that C.R. would stay and get an Uber home later on. When she was leaving, B.A. told her son J.A. a few times to make sure that C.R. got home in an Uber. She also texted J.A. when she got home urging him to look after C.R. J.A. remembered thinking that C.R. was not a baby and did not need babysitting, but did not reply as such to his mother.

18Upon returning to the townhouse C.R. then took a 15 to 20 minute walk with her brother around the townhouse community. When she went back into the townhouse, C.R. recalls being served more drinks but does not recall who served them. She admits to feeling the effects of the alcohol and enjoying herself.

19Mr. T.W. indicates that somewhere between 9:30 p.m. and 10:00 p.m., he and T.A. left to go to the store and the LCBO to get snacks and more tequila. While they were gone, and perhaps a bit before, Ms. A.R. put on some music and the women and remaining children started dancing. C.R. recalls her brother taking pictures on his phone. T.A. stated that J.A. was video-taping the dancing. When T.A. found out he was streaming the video on “Facebook Live” she asked him to stop, which he did.

20At one point during the night C.R. recalls that Mr. T.W. walked up to her and said in her ear “I am going to fuck you”. At the time, she was not dancing, but standing. His wife, Ms. A.R. was selecting new music from the computer in the room at the time. He said it very quickly. She thought his comments were unreal or unbelievable. She did not think though that she had to worry about anything as she was with her extended family and her brother was there. She said nothing to him in return. She admits to feeling drunk at that point, but was aware of his words and aware of her surroundings. Mr. T.W. denies he said this. No other witness testified to hearing the comment.

21There is some evidence that while the ladies were dancing, C.W. and C.R. lifted their tops and flashed their bras. J.A. recalls at one point C.R. showed her bra. He believes something happened to make her do that but he did not see his mother-in-law lifting her top, and he is not sure why they all did it. Mr. T.W. claims the dancing happened when he and T.A. were gone to the LCBO. He saw no dancing at all, or the alleged flashing of bras. C.R. recalls that while dancing C.W. lifted her top to show off a fancy bra. She recalls other women doing the same, but does not recall if she did it herself.

22Ms. A.R. claims to have put her children to bed at around 8:00 p.m.

23C.R. recalls P. and her daughter leaving and remembered that she was sorry to see them go. Ms. A.R. remembers that P. and her daughter left between 10:00 and 11:00 p.m., prior to J.A. and T.A.’s departure.

24Around 11:00 p.m. J.A. and T.A. decided to go home. Ms. A.R. remembers it being closer to midnight. When they left, J.A. asked C.R. if she wanted a ride home with them. C.R. declined the offer and indicated that she would get an Uber later on. J.A. gave evidence that Ms. A.R. offered for C.R. to stay with them as she was family. He remembers that when he left his mother-in-law was in bed, the kids were in bed and his wife was waiting for him in the car. J.A. was impatient as he had been drinking and working all day and wanted to get home. J.A. stated at first he insisted that his sister go home with him. When Ms. A.R. indicated that she could stay he told her that his sister was her responsibility, and to ensure that the girls slept together upstairs and Mr. T.W. remained downstairs. He was assured that would be okay so he went home. J.A. stated that he insisted on the sleeping arrangements as he wanted to ensure his sister got a good rest and that she was in the company of someone he trusted as a sister. He wanted to make sure she was not passed out on the couch or the floor. He believed that Ms. A.R. would take care of his sister and that Ms. A.R. would sleep with his sister upstairs so that Mr. T.W. would have to sleep on the couch downstairs. J.A. recalls that Mr. T.W. had a smirk on his face when this was said, so J.A. told him that he was serious about his demands with regards to the sleeping arrangement. He maintains it was simply as a result of his desire to look after his sister. He was not aware where his sister was when he was having this conversation with Ms. A.R. and Mr. T.W..

25T.A. recalls that when they were preparing to leave, they asked C.R. to go with them, but she wanted to stay. T.A. states that she was not privy to any conversations about the sleeping arrangements.

26Mr. T.W. claims he did not hear any conversation between J.A. and his wife about who should sleep with whom that evening.

27Ms. A.R. recalls that J.A. and T.A. told her at least twice when they were leaving to make sure that C.R. slept with her upstairs and that Mr. T.W. was to sleep on the couch. Ms. A.R. indicated that although she agreed, she did not feel that she was really responsible for anyone. She agreed to the sleeping arrangements but did not think it was “under oath” or anything. She claims not to know the reason why J.A. insisted on these sleeping arrangements.

Consumption of Alcohol

28There is conflicting evidence on C.R.’s level of intoxication that evening. C.R. claims she did drink more than usual; she can only remember one other occasion being so drunk. She has no idea why she became so drunk and speculates that tequila was put into her drinks without her knowledge. Mr. T.W. denies putting any tequila in her drinks.

29J.A. observed that C.R. was very energetic that night, more than normal. He observed that she drank a fair amount of alcohol, was full of energy, jumping and dancing, what he would characterize as a “happy drunk”. He admitted to keeping an eye on his sister due to her abundant energy. He was concerned that she may stumble or fall when drinking and dancing. He observed that she does not often drink at functions like birthdays or baptisms, but when she comes over to visit him she would generally have a few drinks. He said he has never seen her before in the state she was that evening and that she was more drunk than usual. Nonetheless, he claims he never witnessed her stumbling or slurring her speech.

30J.A. made a statement to police on April 9, 2017. At one point they were discussing a conversation between him and C.R. the morning after the alleged assault, wherein C.R. said she thought she had blacked out. At that time J.A. stated to Officer Savage:

You know like I, I don’t know what blackout is. Like being in and out of unconsciousness such as that. I don’t know if it’s the tequila that I’ve never seen her in this that state before. Like as far as being drunk, drunk like very drunk.

31J.A. adopted this statement in his cross-examination.

32L.R. stated that before he left around 9:00 p.m., he observed that his mom was obviously tipsy, but not stumbling. C.R.’ mother, B.A., stated that she did not believe C.R. was intoxicated. T.A. believed that C.R. was drunk, but her mother was the drunkest. C.R. was next. She observed C.R. spilling her drink on the dance floor.

33At first, Ms. A.R. indicated she felt C.R. was acting very normal. Ms. A.R. indicated that C.R. was obviously intoxicated but she was not falling down and could still talk, and did not slur her words. Ms. A.R. was then referred to the first half of p. 32 of the transcript of her statement to Constable Savage on April 18, 2017, which she reviewed. The transcript states:

SAVAGE: Okay. So she’s there, and you said that she’s really drunk.

A.R.: I say really drunk because she like she try to hug me and she already like that.

SAVAGE: Oh she’s like swirvy on her feet?

A.R.: (Nods head yes).

SAVAGE: How was she talking?

A.R.: Very you know like drunk. She’s I not even sometimes I not even understand very well.

34Under cross-examination, Ms. A.R. adopted this statement and continued that C.R. was not speaking well because she was mixing up English and Spanish, though she is not sure if C.R. was trying to do this to be funny or because she was drunk. She did say though, that when she nodded “yes” to the police officer about C.R. being “swirvy”, she was not agreeing that C.R. was being swirvy, but that she understood what the word meant. She now maintains that C.R. was not “swirvy” but does admit that C.R. was jumping up and down when dancing.

35According to Mr. T.W., he did not pay too much attention to how much C.R. drank, but maintains she was aware of her actions and was making her own decisions.

36No expert evidence was presented on C.R.’s blood alcohol content or her capacity to consent due to her consumption of alcohol.

The Alleged Assaults

37There are two possible locations in which sexual activity took place between Mr. T.W. and C.R. that evening: in the living room and in the master bedroom. The indictment made no distinction as to the location of the assault on the evening in question. Accordingly, this court can review both alleged events to determine if the accused is guilty of the offence beyond a reasonable doubt: R. v. Groot, 1998 CanLII 2151 (ON CA), [1998] 41 O.R. (3d) 280 (C.A.). During final submissions, the Crown took the position that the alleged assault took place in the master bedroom. Counsel were invited back to make further submissions to address whether the Defendant’s evidence established an offence beyond a reasonable doubt in the living room.

i. Master Bedroom

38C.R. states that she remembers P. and her daughter leaving that night, and that she remembered nothing else until she woke up in a dark room with Mr. T.W. on top of her having vaginal intercourse with her. She states she told him to get off her. She states that he said nothing to her but continued having intercourse. She then states that he shifted her body by bending her legs over her shoulders to lift her buttocks up and had anal intercourse with her. C.R. recalls Mr. T.W. saying to her at this time, “I told you I was going to fuck you”. C.R. recalls being in pain, being drunk and confused as to what was happening. She was in and out of consciousness, and when she came to she realized what was happening and felt the pain in her body. She recalls coming in and out of consciousness maybe two or three times - when he was having vaginal intercourse with her, when he was having anal intercourse with her and possibly once more.

39When she was conscious that night in the master bedroom, C.R. recalls having pain in her lower back, her vaginal and anal area, and being folded or contorted in a way that she had not been before. She recalls the heavy weight of Mr. T.W. and remembers him being very sweaty and pounding her sexually. She recalls no visual contact whatsoever. She did not know what he was looking at as he was taller than her and his head was above her head. She remembers he ejaculated in her vagina and swore. She remembers being on a bed, the room being dark, that there were curtains over a window behind her head, and that Mr. T.W. would not stop. She recalls lots of clothing around the room and she remembers that she was not in her home or her own bed but in a place she had never been before.

40When she woke up in the morning there was a little bit of light coming in through the window. She noticed that Mr. T.W. was lying naked in the bed beside her. She went to the bathroom and when she returned, Mr. T.W. was gone. She recalls the bedroom had a door directly into the bathroom. She gathered up her clothes and phone and went downstairs, where she found Ms. A.R. asleep on the couch. She told Ms. A.R. that she had to leave right away. She gathered her purse and a bag she had for Easter gifts on the main level and her boots from the living room and left.

41Mr. T.W. gave no direct evidence of what occurred in the bedroom, but denies C.R.’s account of the event. He states after the events in the living room, as described below, he feel asleep on the couch. The next thing he remembers is waking up in his son’s room. He maintains he has no memory of how he got upstairs to his son’s bed. When he woke up in his son’s room, he was wearing his shirt and underwear. Despite having no memory of going upstairs, he maintains that he never went into the master bedroom, that he never woke up naked next to C.R. and never left the room when she was in the bathroom. He maintains he would have remembered having sex with C.R. in his master bedroom.

42Despite this assertion, Mr. T.W. agreed at trial that when interviewed by the police shortly after the alleged events, he told them that he did not remember going into the master bedroom, but that he did not want to say yes or no, just that he did not remember going. He maintains that not remembering how he got into his son’s room is not the same as not remembering intercourse.

43Ms. A.R. gave no evidence regarding any activities in the master bedroom, save and except that she put C.R. to bed in the master bedroom, fully clothed, sometime between 2:00 a.m. and 3:00 a.m.

ii. Living Room

44Mr. T.W. gave clear evidence as to what happened in the living room on the evening of April 8 and early morning of April 9, 2017. He states that close to midnight, he was sitting at his computer in the living room and could see his wife and C.R. in the kitchen talking. He could not hear what they were saying. He then moved to the couch in the living room. He could still see them talking, and still could not hear what they were saying. Then he saw his wife and C.R. kissing each other. C.R. had her arm around Ms. A.R., and they were laughing and looked over at him. He overheard nothing before or after.

45Then his wife and C.R. came out of the kitchen and Ms. A.R. sat beside Mr. T.W. on the couch. C.R. sat on the other side of Ms. A.R.. He watched them as they continued to kiss each other.

46In his evidence, Mr. T.W. states that he considered this to be an indication that they wanted to have sexual activity with him. He remembers they said something in kitchen and looked at him, so he thought something may happen.

47In his words, he decided to “test the waters” and he put his hand on his wife’s leg. He then put his other hand on C.R.’ leg. He indicated that he received no reaction from either one of them. He admitted that he had no eye contact with either one of them at that time, as they were only kissing and touching each other.

48He states that somehow his wife and C.R. ended up on the floor in the living room in front of the couch on a rug, with C.R. on her back and his wife on top of C.R. on her hands and knees. They continued to kiss. At first, he stated that he watched them from the couch. Then he approached his wife from behind, pulled down his shorts and hers. Ms. A.R. repositioned her hips to show her willingness and he had vaginal intercourse with her at that time. Nothing was said by his wife. Mr. T.W. admitted that he could not see what was happening between his wife and C.R. at that time. He states that he had vaginal intercourse with his wife for maybe ten minutes, she on her hands and knees and him on his knees behind her. He maintains that he never had anal intercourse with his wife that night.

49His evidence continued as follows:

Q. How did that end, with you and A.R.?

A. She moved over, out of the, just to the side, over towards, onto the couch. [C.R.] was still laying on the floor, right.

Q. What did you do?

A. Ah, I moved closer towards her.

Q. Who?

A. [C.R.], she already had her pants and her underwear off

Q. How did that happen?

A. I couldn’t see what, how that happened as I was still behind Alyeda at that time.

Q. Did you participate in any way in removing [C.R.]’s pants and underwear?

A. No I did not.

Q. ..or either her pants or underwear?

A. No.

Q. Okay, and, so then you moved towards [C.R], what position is she in at this point?

A. She is on her back.

Q. Where are her legs?

A. They are flat on the floor.

Q. What did you do?

A. I moved closer towards her and began to have sex with her there.

Q. Did she…how much time passed between you stopping having intercourse with Alyeda and beginning your intercourse with [C.R]?

A. Not long, less than 30 seconds.

Q. Okay, and did you say anything or did [C.R] say anything?

A. No, neither of us, no.

Q. Did anybody say anything, that is [C.R.], A.R. or yourself, during this whole encounter on the couch and on the floor of the living room?

A. No, no words were said between any of us.

Q. So, when you began having intercourse with [C.R.], before that, had you done anything else, had you kissed her, or make eye contact or anything like that?

A. No.

Q. Okay, so what happens then when you get into position, and start having intercourse with her, what did she do?

A. She wraps her arms around my neck, and she moved her legs, her feet flat up on the floor with her knees up kind of, right she was moving with me as well, she was into the, what was going on.

Q. So, before beginning that intercourse though, was anything said?

A. No, there was…no.

Q. Uh, so you begin having intercourse with her, how long did that last?

A. Again, I wasn’t watching the time, 10 minutes maybe.

Q. Did the position ever change?

A. No, no it didn’t.

Q. And what about her legs?

A. Uh, her legs were, her legs did go up at one point, I might have pushed them up, she might have lifted them up, but they were up in the air.

Q. Okay, did you ever at any point in time attempt or successfully penetrate her anally?

A. No, I did not.

Q. So, she’s got her arms around your neck, uh, is there anything being said?

A. No.

50Later, Mr. T.W. testified as follows:

Q. Going back to the time down in the living room, did either [C.R.] or A.R., say anything specifically to you that indicated to you verbally that they were welcoming your sexual activity?

A. No there were no words said between anyone in the living room.

Q. Was there any other gesture or eye contract or anything like that gave you the idea that they were consenting to what was happening?

A. Gestures? No. Just what had happened, what I had seen in the kitchen, between them speaking to each other and looking over towards me, and the actions of laughing and talking in Spanish towards me, when they came over, they sat down. No, there was no gestures to say yes.

51Under cross-examination, Mr. T.W. went over the events in the living room again:

Q. You mentioned this all kind of started when you were sitting by the computer in the living room and you can look into the kitchen and you saw your wife and [C.R] were talking and giggling.

A. Yes

Q. But you couldn’t hear anything?

A No I couldn’t hear what they were saying, no.

Q And what they were saying was in Spanish, and you said you don’t...

A. My wife speaks Spanish, I don’t understand it or speak it myself, but there was one thing said in Spanish, as I said.

Q. You couldn’t hear what was being said, you could just see them in the kitchen.

A. Yes.

Q. And you saw them kissing?

A. Yes.

Q. And you went into the living room?

A. Yes.

52Again under cross-examination, he repeated that when his wife and C.R. were kissing on the couch that night, he touched both their legs, and they said nothing and had no reaction. He stated that he did not look at C.R. when he reached over to touch her leg. He was not looking at her at all, just watching the both of them, not specifically her. The Crown then asked him:

Q. You would not have known necessarily about how she would have felt about that?

A. You could say that.

Q. How long were you touching her?

A. It was not very long, I could not tell you the exact amount of time. Minutes, a few minutes.

53The sex with C.R. ended when he ejaculated inside of C.R., without a condom. He stated that the whole thing was spontaneous and he wasn’t thinking about using a condom at that moment. In retrospect, he feels bad that he did not use a condom and as a result, C.R. had to take medication to deal with the risk of sexually transmitted diseases and pregnancy. That being said, he did admit that he had a choice as to whether to use a condom. He also admitted that C.R. said nothing to indicate that she was okay with him ejaculating inside of her without a condom.

54Under cross-examination, Mr. T.W. stated that his wife was having her period but he was not sure if she was uncomfortable. When he was having intercourse with her, she moved to the side and sat on the couch. He states had she not moved, he would have continued having sex with her. He states that he then saw C.R. and started having intercourse with her.

55Under cross-examination, Mr. T.W. confirmed that no words were spoken during the activity. He stated that he said nothing before he had intercourse with C.R., who did and said nothing. Once he was having intercourse with her though, he remembers her arms went around his neck and her legs were open and that she brought her knees up, that she was moving and making pleasurable sounds. He withdrew himself after ejaculation, she did not pull him out.

56He stated afterwards everyone put their clothes on and he went outside to have a cigarette. He believes his wife brought C.R. up to the master bedroom to sleep.

57Mr. T.W. states that after he finished his cigarette, and after C.R. was asleep upstairs, he and his wife had another drink and had sex again in the kitchen. They then both laid down on the couch in the living room, one at either end of an L-shaped couch. It is important to note that in Mr. T.W.’s initial statement to the police, he never mentioned having sex with his wife in the kitchen after C.R. went to bed. He stated that he had forgotten about it until he heard his wife describe it at his preliminary hearing, more than a year later, which reminded him of what happened.

58Ms. A.R. confirms that sexual activity took place between the three of them in the living room, but had a different recollection of what actually occurred. She agrees that after J.A. and T.A. left, she, Mr. T.W., and C.R. drank more alcohol, in particular beer and more tequila. Ms. A.R. believes she and Mr. T.W. had tequila, but she was not sure about C.R.

59In her examination-in-chief, Ms. A.R. stated that while in the kitchen with C.R., C.R. started caressing her hair and saying that she liked her, but Ms. A.R. did not take it as a physical thing. Ms. A.R. replied that she thought C.R. was nice too and thanked her for coming. They both then moved to the living room. In the living room, all three of them were talking. In particular, C.R. told Mr. T.W. that he had a good wife and said other things that did not make sense, which Ms. A.R. said were generalities, like she was having fun and that she liked Ms. A.R. very much. According to Ms. A.R., sometimes C.R. was looking at her when she said this, sometimes at Mr. T.W.. She stated that C.R. was cuddly with her and she had a sexy look on her face like she was flirting with Mr. T.W.. Then she came closer Ms. A.R. and they started kissing. She said the kissing continued between her and C.R. and then Ms. A.R. and Mr. T.W. had sex.

60In describing the sex, Ms. A.R. states it started as she was kneeling on the sofa and Mr. T.W. was standing behind her, and he had sex with her from behind. During this, C.R. continued to sit on the sofa across from Ms. A.R. and Mr. T.W.. She said the intercourse did not last long because she could feel her period, so she pulled him out, and then Mr. T.W. and C.R. had sex. She stated that C.R. was slumped on the sofa at that time, so Mr. T.W. had to kneel to have sex with her. She states that the three of them all had sex again, but could not recollect if it was on the sofa. She states it all came to an end when she had a “flash” about what was going on and told C.R. “enough” and that it was time to sleep. She told C.R. it was her choice whether to go to bed or sleep on the couch.

61During examination-in-chief Ms. A.R. was directed to the transcript of her evidence at the preliminary hearing. After reading the transcript, she indicated that her evidence at the preliminary hearing was correct, in that she was on her hands and knees and Mr. T.W. had sex with her from behind, and C.R. was underneath and they were kissing. This evidence was more in line with what Mr. T.W. stated had occurred. She stated than when she brought C.R. up to the bedroom, she told her to be silent as a child was asleep. She claims to have not gone in the room herself, but pointed C.R. towards the bed.

62Ms. A.R. indicated that C.R. pulled down her own pants and underwear in the living room, and that when it was over C.R. put her own pants and underwear back on.

63She then remembers that she and C.R. went upstairs and they met C.W. in the hallway, who asked them what was going on. Ms. A.R. replied that she was showing C.R. where to go to sleep. According to Ms. A.R., C.W. said “that was fine” and then went back to bed. During her evidence, C.W. recalls vaguely seeing Ms. A.R. helping C.R. up the stairs, both with their arms around each other, and Ms. A.R. showing C.R. to the bedroom. She also indicated that when she woke up early in the morning, both Ms. A.R. and Mr. T.W. were asleep on the couch in the living room, which does not align with the evidence of Ms. A.R. or Mr. T.W., who both claim that at some point in the night Mr. T.W. went up to his son’s room.

64Under cross-examination, C.W. claims she was not sure who was holding up whom when C.R. and Ms. A.R. were going up the stairs, and recalls no conversation. She admits that a sleeping pill she had taken earlier had an effect on her.

65Ms. A.R. stated that after C.R. went to bed, she went downstairs and had sexual intercourse with Mr. T.W. in the kitchen. She stated it did not last long and she was not sure who initiated it. After, they had another beer and sat on the sofa. Mr. T.W. went to his computer, and Ms. A.R. fell asleep between 2:00 and 3:00 a.m. She remembers C.R. coming down in the morning to say goodbye. She did not know where Mr. T.W. was at that time. Later on, she received a text from C.W., which woke her up. She went upstairs to see that her daughter was still asleep in the master bedroom and saw that Mr. T.W. was asleep in her son’s room. She claims he was wearing his a t-shirt and long pants. C.R. did not ask Mr. T.W. how he got into his son’s room, but she recalls him mentioning later that he had a backache again so that is why he ended up in his son’s room. Mr. T.W. gave no such evidence.

66She states initially that she did not feel bad about what happened because it was “consensual, primordial, being put in that position”. She states she felt bad about it later because her children and her mother-in-law were in the house.

67Under cross-examination, Ms. A.R. agreed that the kissing between her and C.R. started in the kitchen and they moved to the sofa in the living room. She then stated that when she started having sex with her husband, she was kneeling on the sofa, slouched over and Mr. T.W. was standing behind her. C.R. was on the other part of the L-shaped sofa.

68She repeated that she pulled him out because she felt her period and she stood up. She states that C.R. was slumped on the sofa at this time but she was not kissing her when she was having sex with Mr. T.W.. Ms. A.R. states that afterwards, C.R. pulled Mr. T.W. over with her arm and they started having sex on the couch. Ms. A.R. remained on the couch looking at them. She recollects that afterwards she had sex again with Mr. T.W. but believes she was standing up at that time, bent over supporting herself on the sofa. She believes C.R. was on the couch at that time. Once Ms. A.R. finished having sex again with Mr. T.W., which she claims did not last long, she looked over and saw that C.R. already had her pants up, and was sort of snoozing, falling sleep.

69Under cross-examination, Ms. A.R. admitted to not being truthful to the police in her initial interview. She only mentioned that C.R. kissed her, that their lips touched but did not mention any sex between the three of them. She maintains that she did not lie to the police so much as she hid certain things from them. She admits she lied to the police when she told them she woke up on the couch missing her pyjama bottoms.

70Ms. A.R. was then asked if she recalled being video-taped when she gave her initial statement to the police. A portion of it was played in which she indicated to the police that C.R. was slumped over on the couch after they kissed (the more tame version of the kiss that Ms. A.R. first recounted to the police). In this video, she demonstrated the slump, as someone slumped over with their eyes closed. In cross-examination, she maintained that C.R. really was slumped over like that, but it was after the sexual activity between the three of them.

71C.R. has no memory at all of sexual relations with Mr. T.W. in the living room, or with Ms. A.R. for that matter, on the main level of the townhouse. She has no memory of kissing Ms. A.R. on the floor in the living room on a rug, and has no memory of putting her arms around Mr. T.W.’s neck when he had vaginal intercourse with her and ejaculated, as he described.

Morning of April 9, 2019

72C.R. indicates that when she left the townhome, she ran across the street to the church parking lot. She recalls texting her brother and asking why he left her there, messaging a friend indicating something horrible happened, and trying to call a cab and an Uber. Approximately 10 minutes later her brother showed up and she asked to be taken home.

73Prior to her brother picking her up, C.R. sent a text to Ms. A.R. at 6:33 a.m. stating, “Hi A.R., I’m sorry for my stupid behaviour last night, I am in a state of utter disbelief of what I just woke up to. My absolute apologies to you A.R.. I am so disappointed that my brother left me there and that state, sorry A.R..” Approximately two-and-a-half hours later, Ms. A.R. texted in reply stating, “C.R. don’t say sorry please, I had fun. You are wonderful woman! Thanks for everything I got drunk to so don’t worry”. There were three kissing emojis in the text. When asked why she apologized, C.R. indicated that she was apologizing for getting so drunk and letting her guard down.

74J.A. indicated that when he went home the night before, he had a few more drinks and went to bed around 3:30 a.m. He got a call from his sister at approximately 6 a.m. asking why he left her there. He put on his hat and slippers and went to get her. When he arrived, she was sitting on the curb of the church across the street. She was quiet at first, but when he asked her what was going on, she relayed the events of the evening. J.A. stated he was flabbergasted and didn’t know how to react. He didn’t want to believe it. She told him she wanted to have a nap, but he said he wanted to “call her bluff” and see if she would follow through with what she said had happened, and told her she had to go to the hospital. She agreed to go with him. They were then directed to Chantal’s Place at the Trillium Health Centre, a centre that accommodates victims of sexual assault and domestic abuse.

75J.A. stated that during the car ride home with C.R. in the morning of April 9, she told him that something had happened, and that she woke up naked. It took a while for her to spit it all out. She asked “why do I have my underwear in my hand? Why did you leave me there?” As a result of their conversation, he understood that she was alleging sexual assault against Mr. T.W.. He said that during this conversation C.R. disclosed that she remembered Ms. A.R. was over top of her kissing her.

76J.A. was asked to review his statement to police on April 9, 2017, which he adopted as his evidence at trial. He agreed it took C.R. about 20 minutes to disclose what had occurred, that she was dazed and confused and mumbling, huffing and puffing. J.A. stated that he knew there was something wrong. She said she woke up with no pants on, and Mr. T.W. was lying naked beside her and her pants were inside out. He stated that she was still holding her underwear in her hand and told him they were off her, and that she could not even find her shoes. When she returned from the bathroom, Mr. T.W. was gone. She recounted that Mr. T.W. had told her that he was “going to fuck her” and that after the assault he stated “I told you I was going to fuck you”. She remembers sweat, and going in and out of consciousness.

77When at Chantal’s Place, Constable Savage came to see C.R. and did an interview. C.R. agreed to a sexual assault examination by Ms. Connie Stevens, the registered nurse working at Chantal’s Place. Ms. Stevens gave evidence that she arrived at approximately 10:00 a.m. She performed the sexual assault forensic examination on C.R.. She did all the routine testing, which included a visual examination, and swabbing of nipples, vaginal area (inside and external) and rectal area. She also swabbed inside of mouth, which was her usual practice when drugs or alcohol are involved. She indicated that no injuries were visible in the vaginal or rectum area but that this is not indicative of whether an assault occurred. Ms. Stevens states that the possibility of anal penetration was reported to her that morning and she took the appropriate swabs as a result. Ms. Stevens stated that if no anal penetration was reported, she would not have done that swab. Ms. Stevens prescribed medication to address the possibility of an HIV infection, which has side effects such as diarrhea, sweat, and nausea. She also did a pregnancy test.

78C.R. confirmed that she took AIDS anti-virals, the “morning after” pill and many other medications that made her feel sick. There was a photo taken as well by Ms. Stevens that shows some redness on her upper left arm, which she believes looks like scratches. C.R. also took some other photos four days later when she saw bruising on the bottom of her shins just above and around her ankle on her right and left legs as well as a bruise on her hip. These pictures were forwarded to Officer Savage.

79Ms. Alison Morris, a biologist from the Center of Forensic Sciences, examined the samples from C.R.’ sexual assault kit. She gave evidence that she detected semen in C.R.’ vaginal and rectum area. From the samples she obtained, she was not able to determine if semen in the rectum area was due to penetration or if it leaked in after vaginal penetration. She stated that with the samples taken and tested she was unable to detect the DNA of another female. She stated that her findings are consistent with vaginal and anal penetration, but could not say with certainly that anal penetration took place. Also, she was unable to determine if the penetration was consensual or not.

80Mr. T.W. admitted that later he and his wife spoke about what had happened that night, between the three of them. They agreed that they should not have ever done that, given the amount everyone had to drink. Mr. T.W. maintains that if he could have it back, he would not have had sexual relations between the three of them.

81Mr. T.W. stated that after his interview with the police, he learned that his wife did not support his story of the consensual three-person sexual encounter between them and C.R.. He states he was angry that she did not tell the truth because she was afraid she would lose her children. He states that they grew apart after this episode, and had no more intimacy although they stayed together in the household for another five months. They eventually split up in September 2017 after a verbal argument, which ended with his wife assaulting him with a barbecue fork. The police were called and Ms. A.R. was arrested. These charges were eventually resolved with a peace bond. Mr. T.W. maintains that he only speaks to Ms. A.R. now through lawyers or through friends or family members who assist in child access exchanges. They currently have ongoing family law proceedings where the issue of custody and access is still outstanding. Ms. A.R. states she lives in an apartment with her children and is supported by Ontario Works. Mr. T.W. does not pay her any support.

The Law

82Mr. T.W. will be found guilty of a sexual assault if the Crown can prove, beyond a reasonable doubt, each of the following essential elements of the offence:

1. That Mr. T.W. touched C.R. directly or indirectly;

2. That the touching by Mr. T.W. was intentional;

3. That the touching by Mr. T.W. took place in circumstances of a sexual nature;

4. That C.R. did not consent to the sexual activity in question; and

5. That Mr. T.W. knew that C.R. did not consent to the sexual activity in question.

See: s. 265, Criminal Code; R. v. Barton, 2019 SCC 33, at para. 87; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 24-26, 41, 45; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23.

83The Crown bears the onus of proving all these factors beyond a reasonable doubt. If I am satisfied beyond a reasonable doubt of all these essential elements and I continue have no reasonable doubteven after considering Mr. T.W.’s defence, I must find Mr. T.W. guilty of sexual assault.

84With respect to the alleged assault in the master bedroom, I must consider whether I have a reasonable doubt after considering Mr. T.W.’s lack of memory of that event and his reasons why it would not be possible. With respect to the alleged assault in the living room, I must consider whether I have reasonable doubt after considering his defence that C.R. consented to the sexual activity.

Assault in the Bedroom

85Upon considering the evidence, I find the Crown has proven beyond a reasonable that Mr. T.W. sexually assaulted C.R. in the master bedroom by having vaginal and anal intercourse with her, without her consent, while knowing that she did not consent.

86I make this finding for the following reasons. C.R.’ memory of the assault in the bedroom, albeit fractured, is clear, detailed and consistent. In particular:

1. At the time of the assault, she remembers being on a bed, with a window over the bed. She remembers clothes all around; this is consistent with Mr. T.W.’s description of the master bedroom;

2. When she woke up or came to consciousness, Mr. T.W. was already having vaginal intercourse with her;

3. C.R. states that when she woke up or became conscious she told him to get off of her, which he ignored;

4. C.R. recalls either waking up or regaining consciousness again, at which time he repositioned her by lifting her legs forcibly up and almost folding her in half in order to have anal intercourse with her;

5. C.R. recalls him saying “I told you I was going to fuck you” and remembers that he swore when he ejaculated;

6. She recalls that other than telling him to get off of her, she said nothing. Other than what is described herein, he said nothing to her. They never met eyes the entire time as he was taller than her;

7. C.R. remembers that Mr. T.W. was heavy and sweaty and was having intercourse aggressively with her. She remembers pain in her vaginal and anal area. She remembers pain when he folded her legs over the head.

8. The next thing she remembers is waking up when it was light out, and Mr. T.W. lying naked in the bed beside her. Her pants and underwear were off and turned inside out.

87Ms. A.R. and C.W. gave evidence that when Ms. A.R. brought C.R. to bed, she was fully clothed. When C.R. woke up the next morning, she was naked from the waist down. She scrambled to get dressed. She found her pants pulled inside out. She put them on but not her underwear when she left. She had her underwear in her hand when her brother picked her up, which her brother confirmed. Accordingly, sometime after she went to bed fully clothed and before she woke up the next morning, her underwear and pants had been taken off. No reasonable explanation for this was proffered by Mr. T.W., except to attack C.R.’ credibility.

88Mr. T.W.’s evidence on what happened on the second level of the house, while sparse, is not credible. He claims he has absolutely no memory of how he got from his living room to his son’s bedroom on the second floor, but claims he would have remembered going into the master bedroom across the hall at that same time.

89Also, Mr. T.W. claims to have no memory of going upstairs, yet has a very clear memory of what happened between him and his wife and C.R. approximately one hour earlier.

90Mr. T.W.’s evidence is also inconsistent. He maintains that he would have remembered having intercourse upstairs, but then admitted to forgetting he had intercourse with his wife in the kitchen on the early morning of April 9, 2017, until which time he heard his wife give evidence about it at the preliminary hearing in June 2018, over a year later.

91I also find Mr. T.W.’s explanation for the bruises on C.R.’ ankles lacks credibility. He went over the alleged events it the living room a number of times. Each time he stated that when he approached C.R., she had her legs flat on the floor. When he started having intercourse with her, he stated her feet were on the floor and her knees were up. Only once did he say her legs may have gone up, but did not recall if she put them up or if he pushed them up. When asked by his lawyer how the bruises may have occurred, his initial response was that he has no idea. It was only when asked directly by his lawyer if it was possible that they had been the result of the sexual activity in the living room that Mr. T.W. offered it as a possibility. The bruises were under and around C.R.’ ankles and on her lower shin. These bruises are not consistent with someone who raises their own legs or has their legs pushed up.

92Finally, Mr. T.W. maintains that the assault could not have happened in the master bedroom, because his young daughter was sleeping in the room and it would have woken her up. This position lacks credibility for number of reasons:

a) Many witnesses gave evidence that after their daughter went to bed, which Ms. A.R. says was about 8:00 p.m., that the house was noisy, between watching the hockey game, the music for dancing and the noise outside when people took smoking breaks;

b) When Ms. A.R. put her daughter to bed, no efforts were made to turn down the music;

c) C.W. gave evidence that she actually yelled out her window at around 11:00 p.m. for everyone to keep it down outside or she would call the police. No one seemed too concerned that the baby would be woken up by the outside noise or by Ms. C.W.’s yelling;

d) Neither Ms. A.R. nor C.W. gave evidence that the baby woke when Ms. A.R. and C.R. climbed the stairs and C.R. went into the room to go to bed;

e) The baby did not wake when C.W. met the women in the hallway and accordingly to Ms. A.R., exchanged a few words;

f) Ms. A.R. gave evidence that the next morning she checked on her daughter around 6:30 a.m. and she was asleep; her going into the room did not wake her up her daughter; and

g) Ms. A.R.’ daughter did not wake up despite C.R. waking up, going to the bathroom attached to the room, coming back into the room, searching for her clothes and phone, and getting dressed.

93Accordingly, Mr. T.W.’s position that the baby would have woken up does not raise a reasonable doubt.

94Mr. T.W. also asserts that C.R. is not a credible witness and that her evidence should not be accepted. Mr. T.W. maintains that C.R. participated willingly in the sexual activity in the living room, and afterwards felt ashamed, and in fact apologized by text to his wife. He maintains that in the car ride to the hospital the next day, she learned that Mr. T.W. did not have a good reputation and decided at that time to maintain she was sexually assaulted to save her reputation. He also maintains that he never had anal intercourse with C.R. and that was something she made up in the days to come and only reported to the police days later.

95Despite the efforts of the defence, I find that C.R.’s evidence is credible. The defence’s efforts to show that she is deceptive by nature – because she tries to hide her drinking – have failed as there was no evidence that she tried to hide her drinking, especially on the night in question.

96The defence tried to show C.R. as unreliable because at times she refers to Mr. T.W. being sweaty when assaulting her and at times refers to him as “dripping sweat”. This is not a distinction that raises a credibility issue in my opinion.

97In addition, the defence maintained that C.R. is untrustworthy because she counselled T.A. and J.A. to withhold certain evidence from the police during the investigation, which C.R. denies. In particular, C.R. asked them to withhold the fact that she recalled Ms. A.R. kissing her on the night of the assault.

98It was put to C.R. that she asked T.A., verbally and by text, to withhold this information. She denied the allegation. When T.A. gave evidence, no such texts were produced, and she gave no evidence that C.R. ever asked her to withhold this information.

99It was also put to C.R. that she asked her brother J.A. to withhold from the police that she remembers Ms. A.R. kissing her, which she denied. J.A. did give evidence that C.R. asked him to withhold this information, but the first time he disclosed this request was approximately two days prior to the commencement of the trial, over two years since the events in question. When asked why he waited so long to advise the police, he indicated that he was trying to preserve a relationship with his sister after being estranged so long. This is suspect given that both he and C.R. testified that their relationship ended approximately one week after the assault.

100In addition, J.A. has professed to having mixed loyalties in this matter: C.R. is his sister and Mr. T.W. is his brother-in-law. As C.R. has distanced herself from J.A. and his extended family, so has J.A. and T.A.’s evidence changed. While their statements to police were initially supportive of C.R. and her version of the events that night, they are now reluctant to say anything that may cast Mr. T.W. in a culpable light.

101J.A. was brought back to his initial police statement to remind him of the details of the assault that he had originally reported. He accepted his original statement at trial. It is important to remember that initially C.R. did not ask to report the assault to the police. It was J.A., after hearing C.R.’ account of what transpired within hours of the alleged assault occurring, who insisted that she go to the hospital.

102I also find that the Crown has established beyond a reasonable doubt that C.R. did not consent to the sexual activity in the master bedroom. C.R. gave evidence that she woke up while being sexually assaulted by Mr. T.W.. She told Mr. T.W. to stop. His only reply was “I told you I was going to fuck you.” The law is clear that an unconscious person cannot consent to sexual activity: J.A., at para.66. Whether or not the lack of consciousness was due to alcohol, it is clear that a person who is unable consciously evaluate the situation cannot consent: Ewanchuk, at para. 48.

103I also find beyond a reasonable doubt that Mr. T.W. knew that C.R. did not consent. She verbally told him to stop. At times she was asleep or unconscious. He never met her eyes to even determine if she was in agreement. Silence, passivity or ambiguous conduct on the part of the complainant does not constitute consent: Ewanchuk, at para. 51.

Assault in the Living Room

104After hearing further submissions on this issue, I am unable to find, beyond a reasonable doubt, that Mr. T.W. sexually assaulted C.R. in the living room. In particular, the Crown has failed to establish, beyond a reasonable doubt, that C.R. did not consent to the sexual activity that was alleged to have occurred.

105C.R. is very clear that she has no memory of what occurred in the living room. As stated in R. v Al-Rawi, 2018 NSCA 10, at para. 69:

Difficulties present where the complainant, due to the ingestion of drugs or alcohol, truly has little or even no memory of the event. Absent direct evidence from a complainant that subjectively she did not consent, the judge or jury frequently must rely on circumstantial evidence to determine the absence of consent.

106I have reviewed the parties’ evidence with respect to C.R.’s level of intoxication. While I have no doubt finding that C.R. was very intoxicated, the lack of scientific evidence regarding her level of intoxication, and whether it could lead to incapacity raises a reasonable doubt. In addition, the evidence regarding the effect of the alcohol on C.R. is at times conflicting. When T.A. and J.A. left at around 11:00 p.m., they believed C.R. was clear in her desire to stay. She was alert, not passed out, not stumbling and not slurring her words. In the intervening hours, there is some evidence of incoherency and passing out right after the alleged sexual events. All this leaves a reasonable doubt as to whether C.R. lacked the capacity to consent at the time the alleged sexual activity took place. I come to this determination not because I believe C.R. consented to this sexual activity, but because the Crown has not been able to prove beyond a reasonable doubt that she did not.

107What is clear is that a period of time of passed between what allegedly happened in the living room and what I have found to have occurred in the master bedroom. After C.R. went upstairs, Mr. T.W. had sex with his wife again in the kitchen and then then both lay on the couch to go to sleep. Even if C.R. did consent to the sexual activity in the living room, I cannot conclude that she consented to further sexual activity in the master bedroom later. Consent must exist in the mind of the complainant at the time the sexual touching occurred: J.A., paras. 46-47; Ewanchuk, at para. 26. What allegedly happened in the living room is a separate event from what occurred in the master bedroom. Consent cannot be implied, nor can it be the result of a myth or stereotype that a person who consents once is likely to consent again: Barton, at para. 100; Ewanchuk, at paras. 31-34. C.R.’ evidence is clear with respect to the master bedroom. She did not consent and she told Mr. T.W. so.

Conclusion

108Accordingly, despite the Crown not being able to prove a sexual assault took place in the living room, it has proven beyond a reasonable doubt that Mr. T.W. sexually assaulted C.R. in the master bedroom.

109In light of these findings, I find Mr. T.W. guilty of sexual assault as charged.

Fowler Byrne J.