ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-997-18
DATE: 2019-10-15
BETWEEN:
HER MAJESTY THE QUEEN
– and –
E.F.
Accused
Kaely Whillans and Jennie Rose Mongeau, for the Crown
Glenn Sandberg and Dimitri Trofimoff, for the Accused
HEARD: September 5, 6, 9 and 10, 2019
REASONS FOR JUDGMENT
Cornell, J.
Introduction
[1] The accused is charged with one count of sexual assault. In accordance with the reasons that follow, I find the accused not guilty.
Background
[2] The complainant and the accused agree on much by way of background.
[3] They met on Tinder. A few months later, they met in person in September of 2017. They subsequently met on Friday, October 13, 2017, for a second time. The plan was to “hang out”. This involved watching a movie at the residence of the accused and perhaps having a fire.
[4] The accused picked the complainant up at her home and took her to his apartment in Azilda. The complainant was offered and proceeded to receive a glass of white wine. The accused proceeded to drink his first beer.
[5] The parties sat on his futon and selected a Netflix movie. After approximately 15 minutes or so, the parties decided that the movie was not that interesting. A second choice was made. It was about that point in time when the complainant had finished the glass of wine.
[6] The accused testified that he excused himself to have a cigarette in his truck as it was raining. He acknowledged that he was listening to music at that time.
[7] When the accused returned to his apartment, that is where there is a very substantial divergence in the evidence that was offered. The complainant asserts that she blacked out on three occasions that were separated by fragments of memory that involve non-consensual sexual activity with the accused.
[8] The accused testified that the sexual activity that occurred was consensual and that there was nothing in the complainant’s demeanor that would have suggested that she was intoxicated or otherwise incapable of consenting to the sexual activity that occurred.
The Issue
[9] Both parties acknowledge that some sexual activity took place. The sole issue is whether the complainant consented to that sexual activity. An examination of this question will necessarily involve a determination as to whether or not the complainant was unable to consent to the sexual activity as a result of her incapacity to do so.
Review of the Evidence
Evidence of the Complainant
[10] The complainant testified that, after she consumed the glass of wine, she began to start to doze off. She went further and said that she was “passing out”, that this occurred “very quickly”, and that it “knocked me out”. On a scale of zero to ten, with ten being the most intoxicated that a person could be, she stated that her condition was a ten.
[11] The complainant testified that she was not aware of the accused leaving to go outside. She said that she became aware of this when she saw his text messages at approximately 12:30 a.m. the next day.
[12] She said that after she fell asleep, she awoke to find the accused on top of her. He was touching her thighs and her breasts with his hands. No conversation had occurred. She did not want him to touch her. She was scared. Her eyes were open, but she could not move her body. She then blacked out.
[13] She next woke herself up because of pain in her genital region. She woke herself up because she heard herself saying “stop it”. She felt pain in her genital region and went on to say that this pain was in her vagina and her anus. This pain was being caused because the accused’s penis was inside of her.
[14] When this activity occurred, the accused was lying on the futon and she was sitting on and facing the accused. She has no memory of how she got in that position. She recalled that her pants were off. She recalled that his shirt was on.
[15] During her evidence in chief, she said that she told the accused to “stop it, it hurts” and that he immediately complied with that request. During the course of cross-examination, she said that she told the accused to stop multiple times. On either version of the facts, the accused stopped but, according to the complainant, he then proceeded to guide her head towards his genital region. She testified that she did not want to perform oral sex on the accused. She said that she was feeling upset “as she did not want penetration”. She had an eerie feeling. She felt sick to her stomach.
[16] The complainant then felt a liquid on her right leg. She was unsure what that liquid was and said that she may have spilled something. She then became aware of the accused holding a neck choker that she had worn that night. She knew that he had done this because she found it loose when she woke up in the morning.
[17] Her next memory was of being in the accused’s bedroom and “puking” while laying in his bed. She said that she puked three times. Her pants were off, but she was unsure about her top.
[18] She then said that accused came in the room and proceeded to clean up the puke. She recounted that the accused said, “I have never seen this after one glass of wine”.
[19] She fell asleep. She woke up sometime around 12:30 a.m. She proceeded to contact three friends to request that they come and take her home. The first person did not want to because of the distance involved. The second person was unable to do so as he had been drinking. She then proceeded to contact her friend Dylan. The complainant said that Dylan was in the process of coming to pick her up when she heard the accused enter the apartment. She explained that she then told Dylan not to come as she was afraid that an altercation might occur.
[20] She spent the balance of the night sleeping in the accused’s bed. She had no further contact with the accused until approximately 9:00 a.m. the following morning when she entered the living room to find him present. She sent a text to her brother-in-law who proceeded to come and pick her up. The complainant recounted that as she was leaving, the accused said to her “you are getting sick, you must be coming down with something”.
Evidence of the Accused
[21] The accused tells a very different story.
[22] He said that the complainant consumed the wine over a period of about 20 minutes. He offered her more wine and she accepted.
[23] The glass was made an exhibit. It is a large Coca-Cola glass. The accused said that he measured the volume of the glass and found that it contained approximately eight ounces.
[24] He told the complainant that he was going outside to have cigarette. She remained in the apartment to watch the second movie. At that point in time he did not notice anything unusual about the complainant’s behaviour.
[25] He spent about 15 minutes in his truck smoking two cigarettes and listening to music. He sent her a text message at 8:42 p.m. while he was in his truck. The first message was a “questioning” emoji. The second was a “disappointed” emoji. The complainant responded at first “Lol” and then “Why’d”. He replied as follows:
Hahha cause you don’t wanna
come listen to rap with me haha
All good haha start the movie if you
want
I’ll be in in like 10 min
Would you rather ;) lol
Me walk in and sit down beside
you… and watch that movie or walk
in and start touching you all over? ;)
[26] The accused then sent four more emojis. A smiley face with hands clasped on the cheeks, a monkey with his hands over his mouth, a questioning emoji and a disappointed emoji. The complainant did not respond to those text messages.
[27] The accused returned to his apartment and sat next to the complainant on the futon. The complainant was watching the second movie. He observed her wine glass to be empty. He offered her more wine. She accepted. He observed her take some sips of wine, but did not know how much of the second serving she consumed.
[28] The parties began to “make out”. He explained that they proceeded to kiss one another. They then proceeded to touch each other. He was touching her thighs and her breasts. She was touching his genital region. Both parties were fully clothed at that point in time. The accused testified that it was consensual; the complainant was kissing him back and had proceeded to touch his genital region of her own volition.
[29] The complainant then proceeded to remove her pants. At that point in time, she continued to wear a one-piece bodysuit that fully exposed her legs. She continued to touch his genital region.
[30] He then proceeded to push the bodysuit and the complainant’s underwear aside so that her vagina was exposed. He proceeded to “do oral on her”. He testified that he did this for approximately five minutes and that during this period of time he understood the complainant to be consenting because “she was enjoying it”.
[31] After the cunnilingus ended, the complainant once again proceeded to touch his genitals. He proceeded to take his pants off. The complainant went down on her knees and proceeded to perform fellatio on the accused who was lying on the futon in the living room. The accused testified that the fellatio continued for about three minutes at which point in time he ejaculated. He said that he ejaculated “all over”.
[32] After this, he proceeded to perform “oral” on the complainant for a second time. Prior to this occurring, the complainant had taken her bodysuit off so that she was only wearing her bra and underwear. His pants were off, but his top remained on.
[33] A photograph marked as Exhibit 2 depicts a lacy undergarment. The picture shows that the undergarment has come apart. The accused testified that, while in the process of pushing the complainant’s underwear aside, they tore or fell apart. He said that he apologized to her at that point in time for the damage to her underwear that had occurred.
[34] The accused testified that the complainant then proceeded to get up wearing only her bra and walk into the bedroom. He then went into the bathroom for a short period of time to clean himself up. Although no conversation had occurred, it was his expectation that the complainant had gone into the bedroom so that they could continue the sexual activity.
[35] According to the accused, when he entered the bedroom, he discovered that the complainant was lying on the bed and had vomited on it. He recounted that he said to her “Wow, what happened?” The accused then proceeded to clean up the mess. He placed the complainant in the recovery position and put pillows along her back. He said that this process took approximately 15 minutes.
[36] He left the bedroom. He spent approximately 20 minutes alone in the living room. He then contacted Monica, a friend that he had known for some years. Monica attended at his residence, picked him up and they proceeded to drive around for approximately three or four hours. When they returned to the accused’s apartment around 2:00 a.m. or 3:00 a.m., Monica was invited in. Monica testified that she was inside the apartment for approximately two to three minutes. After she observed women’s shoes and a purse, she testified that she immediately left as she was unaware that the accused had female company.
[37] Before leaving and upon returning to his residence, the accused testified that he opened the door to check to make sure that the complainant was okay. He proceeded to sleep on the futon in the living room.
[38] At approximately 9:00 a.m. the next morning, the complainant left the bedroom and entered the living room. She was fully dressed. He observed her demeanor and found nothing unusual. He offered to give her a ride home, but she declined. He offered to take her for breakfast, an invitation that was also declined. He offered and she took some water. They proceeded to “hang out” until her ride arrived. At that point in time, they exchanged goodbyes and she left.
[39] There was no further contact until approximately one week later when the parties exchanged text messages.
Analysis
Consent and Capacity
[40] As previously stated, this case involves a consideration of both consent and the capacity to consent to sexual activity. The approach to be taken in these circumstances was recently considered in R. v. G.F. et al., 2019 ONCA 493, where the court stated:
[41] How then should a trial judge approach the evidence when dealing with potential issues of both consent and capacity to consent? He or she should first consider whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to sexual contact. If the complainant did not consent, then there is no ostensible consent which is vitiated by lack of capacity. This two-step process was described in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346 at para. 4:
The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)).
[41] I will now turn to consider if the Crown has proven beyond a reasonable doubt that the complainant did not consent.
Consent
[42] The meaning of consent in this context was considered by the court in R. v. G.F., where the court stated:
[30] Subsection 273.1(1) of the Criminal Code, as it was at the relevant time, provides that consent means the voluntary agreement of the complainant to engage in the sexual activity in question. Subsections 273.1(2)(b) and (d) provide that no consent is obtained where the complainant is incapable of consenting to the activity or where the complainant expresses by words or conduct, a lack of agreement to engage in the activity. Subsection 273.1(3) provides that nothing in s. 273.1(2) shall be construed as limiting the circumstances in which no consent is obtained.
[43] Two very different versions of events have been presented. A careful consideration of all the evidence is required. In undertaking this exercise, I am mindful of the fact that I can believe some, none, or all the evidence that has been offered by a witness. I am also mindful that I am to be guided by the approach mandated by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.
[44] A useful summary of the principles involved in the approach to be taken can be found in R. v. Williams, 2010 ONSC 184, where Hill J. stated as follows:
[56] A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.
[57] Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.
[58] A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.
[45] The complainant began by saying that after drinking one glass of wine, she started to feel “dozy” and that she fell asleep before the accused left the apartment. She went on to say that she could not get up or move. She said that she could not think. She said that she was knocked out. She said she fell asleep. She said she had an eerie feeling. She said that it was hard to remember things. She admitted in cross-examination that there were gaps in her memory and that she was trying to “fill in the blanks”. She testified that she was “in and out of consciousness” three times. She testified that she remembered events “in bits and pieces over the next week”. She said that her brain was “foggy” for two or three days after the incident.
[46] In her evidence in chief, the complainant said that she woke herself up by hearing her voice saying “stop” because of the pain that she was experiencing. She said that the accused was causing the pain in her vagina and anal area because his penis was inside her. When asked about this during the course of cross-examination, she indicated that the accused was penetrating her, but she was “not sure where”. This conflicts with what she told her mother the following week that his penis was in her anus.
[47] During the course of cross-examination, the complainant acknowledged that there were gaps in her memory and that she was “trying to fill in some blanks”. During this process of trying to fill in some of the blanks, she acknowledged that she was having conversations with family members including her brother-in-law, her sister and her mother. The complainant’s brother-in-law acknowledged that after picking the complainant up to take her home, he said to her that she must have had a seizure or been given some drug in order for her to be like that.
[48] During the course of cross-examination, the complainant was faced with two prior inconsistent statements.
[49] Defence counsel asked her at trial if she was delusional at any point in time during the course of the evening in question. She denied being delusional. During the course of her preliminary hearing testimony, she did state that she was delusional on the night in question. She did not adopt this answer at trial.
[50] In cross-examination, she stated that during the course of events, she was “not completely out of it”. At the preliminary hearing, the complainant testified that she was “completely out of it”. She did not adopt the evidence given by her at the preliminary hearing.
[51] The complainant testified that she had pain in her vagina and anus for a week. A rape kit was administered at a local hospital on the Wednesday following the incident. No evidence of male DNA from the vaginal area was found. I do not regard this evidence as particularly telling as the absence of male DNA may simply be due to the delay in conducting the rape kit examination. What does need to be considered is that, despite the fact that the complainant said she had pain in her vagina and anus for a week, there was no medical evidence or evidence from the complainant herself that her vagina or anus was red, bruised or otherwise injured in any manner.
[52] When she awoke at approximately 12:30 a.m., I have recounted the evidence that she gave detailing the efforts she made to contact three individuals to come and pick her up. The complainant testified that she had made arrangements with Dylan to come and pick her up, but that she told Dylan not to come as she heard the accused enter the apartment and she did not want an altercation. This evidence is contradicted by evidence of the accused who said that he did not return to his residence until around 2:30 a.m. To some extent, this evidence is corroborated by the evidence of Monica who said that after she picked the accused up, they drove around for two to three hours. Based upon this evidence, I find as a fact that the accused was not present in the apartment at around 12:30 a.m. when the complainant awoke with the result that there was no reason for her to decline the ride that was offered by Dylan. Further proof of the accused’s absence can be found in the text message that will next be considered.
[53] A most telling piece of evidence can be found in the text message that was sent by the complainant at 12:36 a.m. During the course of cross-examination, the complainant agreed that as the events of that evening unfolded, she became increasingly afraid of the accused. She testified that was why she was reaching out to her three friends to come and pick her up when she awoke around 12:30 a.m. Just prior to reaching out to those three friends, the complainant first sent an unsolicited text message to the accused at 12:35 a.m. that stated, “I’m sorry” followed by “Come here”.
[54] Those text messages are important for two reasons. First, those text messages indicate that despite her evidence to the contrary, she did not have to worry about Dylan having a confrontation with the accused as the accused was not present. Second, after testifying clearly and definitively that she reached out to those three friends because she was afraid of the accused, she sends an unsolicited text message to the accused that asks him to “Come here”. If she had been assaulted and was afraid of the accused to the extent that she described, it makes no sense whatsoever for her to be sending a text message to her assailant asking him to “Come here”. It can reasonably be expected that such a request would be the last thing that a person who found themselves in those circumstances would do.
[55] The Crown attempted to address this concern by saying that it has now been well established that there is no particular way in which a person who has suffered a sexual assault might react. I accept that such submission reflects the current state of the law. Be that as it may, I am entitled to approach the question from one of common sense in the same manner that juries are instructed to apply their common sense to the assessment of evidence. The fact of the matter remains that the complainant’s request for the accused to “Come here” when she awoke is entirely inconsistent with her evidence that she was afraid of the accused. There is no plausible explanation for this dichotomy and, as such, is an example of how the complainant’s evidence strained her efforts to provide trustworthy and reliable evidence.
[56] I find that the complainant was credible. I have no reason to believe that the complainant was not doing her best to be truthful. Despite that belief, the fact of the matter is that for the reasons previously articulated, the complainant was unable to make accurate and complete observations about the events in question. It is clear that at best the complainant had snippets of memory of the events. The account that she presented was, according to her, developed over the week following while she was discussing events with her family. It is appropriate to characterize the complainant’s evidence as frail to that extent. I find that the complainant’s evidence is unreliable.
[57] These same concerns do not exist with respect to evidence that was offered by the accused. He testified in a very straightforward manner. There was no apparent effort by him to embellish his evidence. There was nothing patently unreasonable about the narrative offered by the accused. He was completely unshaken during the course of cross-examination.
[58] Having said that, there exist two potential problems with the evidence offered by the accused. First, he testified that the underwear depicted by Exhibit 2 was not the underwear the complainant was wearing on the night in question. The underwear in the photograph appears to be blue. He testified that the underwear that the complainant was wearing that evening was black. He also testified that the underwear that the complainant was wearing that evening was more like a thong or G-string rather than the lacy underwear depicted in the picture.
[59] A DNA report tendered in evidence indicates the presence of the accused’s semen on the underwear depicted in the photograph that was put in evidence. This is explained by the accused’s admission that he ejaculated “all over”. I accept the evidence of the complainant that the underwear depicted in picture is the underwear that she was wearing on the evening in question.
[60] Second, I must consider the evidence surrounding the complainant’s condition the following morning. According to the accused, he did not note anything unusual about the complainant’s demeanor the following morning. This stands in stark contrast to the evidence offered by the complainant’s brother-in-law who observed that when she left the accused’s residence, she was walking slowly, was hunched over and holding her stomach. Other family members testified that when the complainant got home, she went straight to her room and uncharacteristically did not engage anyone in conversation. Family members testified that the complainant was not herself for a number of days after the events in question. I reject the accused’s evidence on the this point as well.
[61] I have taken these discrepancies into consideration in assessing the evidence that was offered by the accused. Despite these concerns, I accept the evidence of the accused when it comes to the sexual activity that occurred on the evening in question. I accept his evidence that the sexual activity was consensual. I do so based upon the reciprocal kissing that took place, the touching by both parties as described by the accused, as well as his description of the oral sex that was engaged in by the parties. I accept the evidence of the accused that the complainant disrobed voluntarily and proceeded to the bedroom of her own volition and “without difficulty”, in the mutual expectation that further sexual activity was to occur. I further find as a fact that such additional sexual activity did not take place because of the condition that the accused found the complainant in when he discovered that she had vomited while lying in his bed at a time when he was otherwise preoccupied cleaning himself up in the bathroom. When faced with this development, the complainant recounted that the accused said, “I have never seen this after one glass of wine”.
[62] According to the complainant, she told the accused to “stop, it hurts” when she found herself on top of the accused with his penis inside her. According to her version of events, the accused complied with this withdrawal of consent. According to the accused, no such thing happened as there was no penetration at any point in time. I accept the accused’s evidence on this point.
[63] There is also the complainant’s own evidence on the issue of consent. She testified that “[i]n my mind, I thought it was consensual, but it wasn’t because I did not give him any verbal explanation of yes, I want to have sex with you” and later acknowledged that “I thought it was consensual, but my mind was not fully there at that time”. When I consider this evidence along with the evidence of the accused that I have accepted, I find that the Crown has failed to satisfy its burden to establish beyond a reasonable doubt that the complainant did not consent. I will now turn to consider whether such consent was vitiated by the complainant’s lack of capacity.
Capacity to Consent
[64] As has been detailed, the complainant’s recollection of events can only be characterized as fragile at best. Crown counsel took the position that the evidence offered by the complainant made it clear that given her condition as described by her, she was simply not in a position to consent to sexual activity.
[65] The complainant told her mother at 4:00 p.m. the following day that she had a headache and was sick. The complainant said she felt sick for two or three days. As the complainant was leaving the next morning, the accused said to her “You are getting sick, you must be coming down with something”. Apart from that, there is no obvious explanation for the complainant’s condition as she described it. No expert evidence was called. No toxicology evidence was called.
[66] She said that prior to going to the accused’s apartment, she was not feeling sick. Prior to meeting the accused, she was sober as she had consumed no alcoholic beverages or drugs that day. The complainant could not recall whether or not she had eaten dinner that evening prior to attending at the accused’s residence. She testified that although she seldom drank alcohol, she had never experienced that type of reaction after drinking one or two glasses of wine.
[67] The explanation for her evidence about her condition that evening remains in the realm of speculation. Crown counsel took the position that no matter what the cause of the complainant’s difficulties that night, the complainant’s evidence made it clear that, at the time in question, the complainant lacked the capacity to provide consent. In considering this submission, I now turn to a further consideration of the evidence offered by the complainant and the accused.
[68] The complainant testified that she did not recall the accused going out for a cigarette as she said that she fell asleep or was unconscious before this occurred. She said that she did not see the text messages sent by the accused while he was in his truck until after midnight. An attempt was made to explain this by saying that this was the first time that the complainant was unconscious. As has been previously pointed out, she was not unconscious. She responded to the text sent by the accused by texting “Lol” and “Why’d”.
[69] The complainant testified that she was unconscious on three separate occasions. This evidence is contradicted by the evidence of the accused and the complainant’s own evidence. She testified that she said that her eyes were open, but she could not move her body. She said that she could not move her body and yet she was able to kneel on the floor. She said she could not move her body and yet, by her own evidence, she found herself on top of the accused with his penis inside her, something that is denied by the accused. She performed fellatio to the point that the accused ejaculated. According to the accused, the complainant voluntarily removed various articles of clothing at various points in time and that she walked to the bedroom without assistance at the time that he went to the bathroom to clean up. It is clear from the evidence of both the complainant and the accused that she was never unconscious.
[70] The evidence of the accused about the complainant’s condition stands in stark contrast to the evidence offered by the complainant. I accept the evidence of the accused that he did not observe anything unusual about the complainant’s condition until he found that she had been sick in his bed. As previously detailed, I accept the evidence of the accused that the complainant’s condition was such that she was a conscious and willing participant in the sexual activity that did occur.
[71] I find that the complainant was not so intoxicated or in any other type of mental state that rendered her unable to understand the sexual activity that occurred with the accused. I therefore find as a fact that the consent to the sexual activity that the complainant gave was not vitiated by a lack of her capacity to do so.
Conclusion
[72] The Crown was unable to prove beyond a reason doubt that complainant did not consent. The Crown was also unable to prove that such consent was vitiated for any reason whatsoever.
[73] In accordance with the reasons that have been provided, I find the accused not guilty.
The Honourable Mr. Justice R. Dan Cornell
Released: October 15, 2019
COURT FILE NO.: CR-997-18
DATE: 2019-10-15
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
E.F.
Accused
REASONS FOR JUDGMENT
Cornell, J.
Released: October 15, 2019