COURT FILE NO.: CR-17-70000682-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AUSTIN WHITE-HALLIWELL
Accused
Cara Sweeny, for the Crown
Joseph Heller, for the Accused
HEARD: November 13, 14 and 15, 2018
REASONS FOR JUDGMENT
Garton j.
Introduction and Overview
1The accused, Austin White-Halliwell, is charged with sexual assault causing bodily harm, contrary to s. 272 (2) of the Criminal Code, R.S.C., 1985. C. c-46.
2The complainant and the accused, who were 18 and 26 years old, respectively, at the time of the incident, “met” on the dating website, “Plenty of Fish” on May 20, 2016, which is the date of the alleged offence. They exchanged cellphone numbers, texted each other, sent each other a photograph of themselves via Snapchat, and spoke briefly on the telephone. There was no mention of sex during any of these interactions.
3In a text message sent around 2:00 p.m., Mr. White-Halliwell asked the complainant if she wanted to get together with him that evening, and suggested “beers on my balcony or we could go to the beach or the lakeshore and walk around.” The complainant responded with the text: “Beers on your balcony sounds great.” They agreed that she would come to his apartment on Isabella Street at 7:30 p.m.
4Later that afternoon, around 4:00 p.m., the complainant texted the accused that she was not feeling well, and suggested postponing their meeting until the following day. The accused responded that this would be fine. The complainant later texted: “Screw it. I’ll just take some Tylenol and come. I want to meet you.”
5The complainant took public transit from her residence in Scarborough to the accused’s apartment, arriving there around 7:30 p.m. They spent the next one-and-a-half to two hours, or until about 9:00 or 9:30 p.m., drinking beer on the balcony. When they re-entered the apartment, they sat on a couch and listened to music. The complainant recalled that they also started to watch a movie. She testified that she was feeling “pretty intoxicated” at that point as a result of the beers she had consumed. She also stated that she had an unexpected reaction caused by drinking alcohol while on anti-depressant medication, which resulted in her “getting drunker faster.” She agreed that a lot of what occurred after they left the balcony is fuzzy or a blur, and that there are gaps or blanks in her memory as to what happened during that period of time.
6The complainant described various sexual activities that took place during the half-hour or hour while they were on the couch and before she left the apartment at 10:00 p.m.
7The complainant testified that the accused kissed her and that she kissed him back. She consented to his touching of her breast under her shirt, and also to vaginal intercourse. She testified that her level of intoxication peaked some time during their sexual activities, and that she reached “ten” on a scale of “one to ten.” She had no motor control, it was hard for her to talk, and at one point she could not move. She testified that the accused became more aggressive after intercourse. He put his hand on her neck and applied pressure to the point where she felt woozy. He also put his hand on her neck “on and off” while “fingering” her vagina in an aggressive way. He then had anal intercourse with her without asking for her consent and despite the fact that she told him to stop. When the accused noticed some anal bleeding, he brought it to her attention and went to the washroom to wash off the blood. When he returned, he continued to have anal intercourse with her without her consent. He then ejaculated on her face. The complainant got dressed and went to the washroom, where she noticed the anal bleeding. She washed her face, took out her contact lenses, put on her glasses and exchanged text messages with another person whom she had “met” on “Plenty of Fish.” She asked this person (she did not recall his name) to pick her up at the Victoria Park subway station and drive her home. She put on her shoes, told the accused that she was leaving, and left the apartment. The accused was angry that she was leaving, used profanity and called her names.
8The accused testified and denied that any of the sexual activities that took place were without the complainant’s consent. At no time did the complainant appear to be intoxicated or unable to make decisions. He asked for and obtained her verbal consent before they had vaginal intercourse. He acknowledged that during vaginal sex, he had placed his hand on her neck and applied a “little pressure,” but took it off seconds later when he sensed she was not enjoying it. This was the only time that he put his hand on her neck. They continued having vaginal intercourse. When he asked her if she was “okay” with having anal sex, she said “yes.” During anal intercourse, he noticed some bleeding, told the complainant about it, and went to the washroom to wash off the blood. When he returned, the complainant stated that she was okay, and they agreed to have vaginal sex until he ejaculated. After he ejaculated, the complainant went to the washroom. When she left the washroom, she told him that she was leaving. This angered and upset him, as she had earlier indicated when they were on the balcony that she would be staying the night. After she left, the accused texted her “Get home safe.” When the complainant did not return his message, and after drinking more beer, the accused sent her some “nasty” text messages, such as thanking her for the “terrible night.”
9The following morning, the complainant noticed both vaginal and anal bleeding, and decided to get some medical attention. She attended at the Centenary Health Centre around 11:00 a.m. From there, she was sent to the Scarborough Hospital so that a sexual assault kit could be completed. The complainant declined to have the kit done and did not undergo an internal examination. She testified that she was told by someone at the hospital that she had slight anal tearing, slight vaginal tearing, and some vaginal bruising.
10The complainant reported the incident to the police on June 9, 2016, or about three weeks later, after discussions with a school mentor, a sexual assault counsellor, her parents, and some friends.
11The Crown’s case consisted of the complainant’s evidence, the text messages exchanged between her and the accused before she arrived at his apartment and after she left, and the medical records from the two hospitals that she attended.
12As the accused testified and denied the allegations, the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply.
Position of the Crown
13Ms. Sweeny, on behalf of the Crown, submits that the Crown has established beyond a reasonable doubt that the complainant did not consent to anal intercourse, that the accused knew that she was not consenting, or was reckless or wilfully blind in that regard, and that he intended to cause the resulting bodily harm – that is, the slight anal tearing.
14Ms. Sweeny does not submit that the complainant lacked the capacity to consent. Although the complainant described herself as extremely intoxicated, she had an operating mind at all times, and was therefore capable of not consenting. The Crown submits that the complainant “sobered up” during anal intercourse as a result of the pain and trauma, and was able to say “stop.” The accused ignored her pleas, caused the anal bleeding and then, after washing off the blood in the washroom, resumed having non-consensual anal sex with her.
15The Crown submits that the complainant was a credible witness. Despite the gaps in her memory with respect to some events, the complainant’s memory of the accused having non-consensual sex with her was “vivid.”
16Ms. Sweeny referred to the Court of Appeal decision in R. v. Zhao, 2013 ONCA 293, 297 C.C.C. (3d) 533, which held that when the trier of fact is satisfied beyond a reasonable doubt that the accused intended to inflict bodily harm upon a complainant (a subjective criterion), then consent is irrelevant. Ms. Sweeny submits that in the present case, the Crown has established beyond a reasonable doubt that Mr. White-Halliwell both caused and intended to cause the slight anal tearing. Thus, even if this court were to find that the complainant consented to anal sex or that the accused had an honest but mistaken belief that she consented, consent is vitiated, and the accused must be found guilty of sexual assault causing bodily harm.
17Ms. Sweeny submits that the accused was not a credible witness, and that he has tailored his evidence to avoid taking responsibility for his actions.
Position of the Defence
18Mr. Heller, on behalf of Mr. White-Halliwell, acknowledges that the complainant sustained bodily harm as the pain or discomfort she experienced from the slight anal tearing, slight vaginal tearing, and vaginal bruising was more than transient or trifling. However, he submits that the Crown has failed to establish that the accused intended to cause the bodily harm. The fact that the accused immediately stopped having anal intercourse with the complainant when he saw the blood indicates that he did not intend to cause her harm. Mr. Heller asks the court to accept the accused’s evidence that he and the complainant had consensual vaginal sex, as opposed to anal sex, after he returned from the washroom.
19Mr. Heller does not assert that the complainant has a motive to lie, or that she was insincere in her account of what took place in the accused’s apartment. She may honestly believe that she was sexually assaulted. However, Mr. Heller submits that there are serious concerns with respect to the reliability of the complainant’s evidence such that the Crown has failed to establish its case beyond a reasonable doubt. He emphasized that, as stated in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R.330, at para. 26, “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.” [Emphasis added.] Consent is not determined by what the complainant may later come to believe was her state of mind at the time of the sexual touching. Mr. Heller submits that this is a case where the complainant, in attempting to fill in the blanks in her memory, came to believe after the fact that she had not consented to anal intercourse.
20Mr. Heller submits that Mr. White-Halliwell was a credible witness who answered questions to the best of his ability and acknowledged various matters that did not put him in a favourable light; for example, his anger when he learned that the complainant was leaving. Mr. Heller submits that the accused’s evidence that the complainant verbally consented to both vaginal and anal sex is credible and reliable.
21Mr. Heller further submits that even if the court found that the Crown had established that the complainant did not consent to anal sex, the Crown has not established the mens rea component of sexual assault. He submits that the accused was neither reckless nor wilfully blind in his belief that the complainant was consenting, and that the Crown has failed to establish beyond a reasonable doubt that Mr. White-Halliwell did not have an honest belief that she was consenting.
Summary of Evidence
Testimony of the Complainant
22The accused’s apartment was on the 17th floor of a high rise building on Isabella Street in downtown Toronto. The accused and the complainant shook hands or hugged upon her arrival, and the accused immediately offered her a beer. She said “yes.” He got the beer for her and one for himself, and they went out onto the balcony. The beer can was a “Tallboy” or somewhat taller than the “normal” beer can. The complainant had not had anything to drink prior to her arrival at the apartment.
23The complainant testified that every time she finished a beer, the accused would ask her if she wanted another one, to which she responded, “Yes.” In cross-examination, she attempted to retreat from this position, stating that the accused did not ask her whether she wanted another beer: when he saw that her beer can was empty, he went and got her another one. She agreed that at the preliminary hearing, she testified that the accused always asked her if she wanted another beer, and that she told him “Yes.” She agreed that this prior testimony refreshed her memory and adopted it as accurate.
24The complainant estimated that she drank four to five beers while on the balcony, and that the accused had at least two beers. At no point during her interaction with him that evening did he appear to be intoxicated. He impressed her as being a “nice guy,” and she generally felt good about their meeting. She did not recall but agreed that it was possible that the accused had indicated on his “Plenty of Fish” profile that he was interested in a relationship.
25The complainant testified that she consumed the four to five beers over the course of one-and-a-half to two hours, and that she was feeling pretty intoxicated. She described herself as being at “eight” on a scale of one to ten. She also stated, however, that she still had motor control, was able to walk, and had her wits about her. She and the accused decided to go back into the apartment when it started to get cold outside.
26During cross-examination, the complainant testified that it was “not possible” that she had only three beers. When it was brought to her attention that the nurse who interviewed her at the Centenary Health Centre made the note: “Admits to three beers,” the complainant stated that she was “fairly certain” that she had consumed four to five beers. She acknowledged that during her police interview on June 9, 2016 she stated that she had four beers. At the preliminary hearing and at trial, she testified that she had four to five beers. All of the beers were consumed while she was on the balcony.
27The complainant testified that during their conversation on the balcony, the accused told her that he was employed as a line chef at the Red Lobster restaurant down the street from where he lived, and that he made no mention of being a barista. The accused testified that he has never been employed at the Red Lobster, and that he worked as a barista at a café.
Events after Leaving the Balcony
28The complainant testified that after they entered the apartment, they sat on a couch, listened to music, and started to watch a movie. She could not recall the name of the movie. The accused kissed her. She kissed him back. He then put his hand up her shirt, touched her breast, and used his hand to “get her aroused.” She was “okay” with him touching her breast. Although she had not planned to do anything sexual with the accused that night, and at one point commented to him that they barely knew each other, she also did not “dismiss” having sex with him, and thought, “Okay, this is what’s going to happen.” Things progressed slowly from his touching her breast to the point where they were having vaginal intercourse. The accused never asked her if he could have sex with her. However, she was “not inherently opposed to it.” She disagreed with the suggestion that the accused talked her into having intercourse, and confirmed during cross-examination that she was “okay with progressing to vaginal sex.”
29The complainant acknowledged that a lot of details of what took place after they left the balcony are “fuzzy.” She recalled having vaginal intercourse with the accused on the couch, but could not recall any of the “specifics” leading up to it. She could not recall if she was wearing any clothes, although she recalled that at one point, when she was on her back and the accused was on top of her, she had her shirt on but her leggings and underwear were off. She could not recall if the accused took off his sweater or was wearing it during sex.
30The complainant testified that there was no discussion about using a condom. She was aware that he was not wearing a condom, but shrugged it off and “hoped for the best.”
31In her examination-in-chief, the complainant testified that it was probably shortly before or sometime during vaginal intercourse that her level of intoxication reached “ten out of ten.” She claimed that at that point, she had no real motor control or co-ordination, and that it was hard for her to talk. At one point, she could not move. At no point during the evening did she tell the accused that she was drunk, or verbally indicate to him that she was incapable of making decisions.
32In cross-examination, the complainant testified that she did not know exactly when she hit the peak of intoxication. It could have been sometime after vaginal sex and when the accused was fingering her vagina and choking her. She could not say if she was “close to blacking out” from alcohol, because she has never experienced a black out. However, she acknowledged testifying at the preliminary hearing as follows:
The most drunk I am is probably shortly after we start having vaginal sex. Then, I was probably at about a 10. I couldn’t even really move by myself. I was, if I were to say close to, I’d probably say I was close to blacking out from alcohol, but I didn’t black out from alcohol.
33The complainant could not recall the sequence of the various positions during vaginal intercourse. She recalled that at one point, she was leaning over on the couch and “kind of standing,” with her arms on the seat cushions. The accused was behind her. When they changed positions, the accused would move her around, as she had trouble supporting herself.
34In cross-examination, the complainant agreed that at the preliminary hearing, she testified that when the accused was behind her, and she was standing but bent over the couch, she was “kind of supporting” her body weight with her hands, which were on the seat cushions. She added, however, that she was assisted by the accused, who had his hands on her hips and was pulling them up.
The Choking and “Fingering” Allegations
35The complainant testified that after vaginal intercourse, the accused started to get rougher. He “flipped” her over onto the couch. He was on top of her but not penetrating her. He then put one hand on her neck, applying enough pressure that she started to get a little woozy and almost passed out. She described the pressure as a “decent amount.” He did not keep his hand on her neck for very long – probably about 30 seconds. When he stopped, she did not say anything to him because she was really intoxicated, and anything she did say would probably not have come out as words.
36The complainant testified that the accused put his hand on her neck “off and on” while he was fingering her vagina with his other hand. The fingering, which was painful, lasted about 15 minutes. She did not know how many fingers he used. She testified that she was scared because she realized that things were out of her control in the sense that she was too drunk to do anything about it. She did not say anything to the accused. She did not recall the accused saying anything to her.
37Although the complainant testified that the accused put only one hand on her neck, she stated that it is possible that she told the nurse at Scarborough Hospital that he had used two hands, which is what is checked off on a list in the medical form. In re-examination, she re-iterated that the accused used only one hand when he was choking her.
38In cross-examination, it was suggested to the complainant that the accused did not choke her hard or apply heavy pressure. She responded that there were times that he did apply heavy pressure. She agreed that at the preliminary hearing, she testified that when he “flipped” her over on the couch after having vaginal sex, he “put his hand over my neck, kind of choking me. Not hard, but still choking me.” When asked at the preliminary hearing to elaborate on the pressure applied to her throat, she stated: “It’s not heavy pressure. At one point, I know I felt myself prior to beginning to black out, that, like, woozy feeling where everything goes a bit blurry. But it passed ‘cause he let up at that point.”
39The complainant explained that at the preliminary hearing, she was speaking of only one particular instance of choking. The accused choked her “multiple times that evening”, and at times applied heavy pressure to her neck. However, she also acknowledged that at the preliminary hearing, while describing two instances of choking, she referred to the accused as having “lightly choked” her and, at another point, stated that he was choking her but “not for a long duration of time.”
40On the medical checklist, the nurse circled “8” on a scale from one to ten with respect to the grip exerted on the complainant’s neck. The complainant testified that this pressure referred to the choking that took place between the vaginal and anal sex.
41During cross-examination, defence counsel suggested to the complainant that she almost lost consciousness as a result of the alcohol she had consumed, as opposed to an act of choking. The complainant agreed that this was possible. She added, however, that the pressure on her neck led her to believe that she almost lost consciousness because of the choking and not because of her level of intoxication.
42The complainant testified that at some point after the sex became “rougher,” the accused asked her if she would stay the night. She said “yes’ because she was scared. She denied the suggestion that he first raised the question of her staying the night earlier that evening when they were on the balcony. However, she agreed that at the preliminary hearing, she testified as follows:
Q. You had mentioned that Mr. White-Halliwell asked you throughout the course of the evening to stay the night.
A. Yes.
Q. Do you remember how many times he asked?
A. I don’t remember exactly how many times, no.
Q. Do you remember when he first started asking you to stay the night?
A. I think he, like, briefly mentioned it when we were on the balcony. … And then, I can’t remember after that when, specifically, he mentioned it to me, but I know he did mention it again.
43The complainant testified that although she was telling the truth at the preliminary hearing, she would “go with what she feels today,” and that the accused did not ask her to stay the night until later on and after they had left the balcony. She stated that her memory at the time of the preliminary hearing was not necessarily “fresher” than it is today, notwithstanding the fact that it was closer in time to the events in question.
44The complainant testified that the accused asked her multiple times if she would stay the night. She did not recall if she said “yes” every time. However, she agreed that her answer did not revert back to a “no” until the moment when she was leaving the apartment.
Anal Sex
45The complainant testified that after the fingering, the accused decided to have anal sex with her. She had been lying on the couch, but he positioned her so that she was “kind of standing” but bent over the couch, with her arms supported by the bottom couch cushion. The accused was behind her. His arms were on her back, pushing her down. He then anally penetrated her with his penis. The anal intercourse was more painful than the vaginal fingering. The accused did not use a condom or any lubrication.
46The complainant testified that her level of intoxication probably peaked during anal intercourse. That was when she started to “come down.” She became more aware of what she was doing and more vocal during anal intercourse. She told the accused “not to do it,” but he did not seem to be listening. She then started to scream “Stop,” but again, he did not respond.
47The complainant estimated that anal intercourse lasted about 15 minutes. The accused stopped when he realized that she was bleeding, stating, “Fuck, you’re bleeding out of your ass.” It was her impression that the accused was disgusted by this turn of events. She did not say anything in response. Prior to his comment, she was unaware that she was bleeding.
48The accused went to the washroom to wash off the blood. He was gone for a couple of minutes. She did not recall what she did while he was gone – that is, whether she was lying down or seated on the couch. She acknowledged telling the police during her interview on June 9, 2016 that she remembered sitting back down on the couch. At the preliminary hearing, she testified that she “just kind of laid there.” She testified at trial that both of these statements are, “to an extent,” accurate.
49The complainant testified that her clothing and purse, which contained her cellphone, were nearby. None of her belongings were in the washroom. She denied the suggestion that she did not leave the apartment at that time because she wanted to stay, and that she had consented to all of the sexual activity that evening.
50The complainant testified that when the accused returned from the washroom, he resumed anal intercourse with her without her consent. She believed that they were in the same position that they had been in earlier. It ended when the accused stopped penetrating her and ejaculated on her face. At that point, she was lying “face up” on the couch. The accused was over top of her, but she could not recall if he was standing. She could not recall if he said anything.
51The complainant thought it was possible that the anal sex, including both before and after the accused went to the washroom, lasted about 15 to 20 minutes. It was also possible that the “pause,” when the accused went to the washroom, was closer in time to when he ejaculated.
52The complainant testified that she got up, got dressed (she could not recall if she was ever entirely naked that evening), picked up her purse, and walked to the washroom. This was the first time after coming in from the balcony that she had left the area of the couch.
53In her examination-in-chief, the complainant testified that while she was in the washroom, she noticed the anal and vaginal bleeding. In cross-examination, she testified that she did not observed any vaginal bleeding until the following morning.
54While in the washroom, she washed her face, took out her contact lenses, and put on her glasses. She also texted another individual whom she had “met” on “Plenty of Fish.” This was the last person to whom she had “spoken” or texted before entering the accused’s apartment. She told this person that she had been raped, that she needed his help, and asked him to meet her at the Victoria Park subway station. The complainant could not recall this person’s name, and she did not keep the text messages that they exchanged while she was in the washroom.
The Complainant Leaves the Apartment
55The complainant was in the washroom for about five minutes. She then went to the hallway, put on her shoes, and told the accused that she was leaving. He was angry that she was not staying the night, used profanity and called her some names. He also made the comment, “I hope you’re clean,” by which she understood that he meant, “I hope you don’t have any sexually transmitted diseases.” She could not recall if she said anything to him. She just wanted to leave as quickly as possible.
56At 10:02 p.m., or right after the complainant left the apartment, the accused texted her: “Get home safe.” About half an hour later, when she failed to respond to this message, the accused texted her: “Thanks for a terrible night. Rather of kept all that beer to myself.”
57The complainant walked to the subway station, which took about ten minutes, and then got on the subway. She could not recall which subway station she went to. She testified that she was still fairly intoxicated and did not have all her wits about her. The male whom she had texted picked her up at the Victoria Park station and drove her home. She was sharing a house with a couple of other people at the time. When she got home, she went to bed.
58In cross-examination, the complainant acknowledged that she had difficulty recalling certain parts of what happened at the apartment that night. She could not pinpoint the moment when her “memory issues” arose, but it was before she and the accused had vaginal intercourse. Things started to get “fuzzy” in her mind sometime during the foreplay, and prior to the accused touching her breast.
59She testified that she recalled fairly strongly, but not perfectly, the anal intercourse. She also vividly recalled some other details. However, she agreed with the suggestion that a lot of what happened is a blur. She could not recall what movie they watched, as she was “fairly intoxicated” by that time. She added that the movie was not particularly significant to her. She denied the suggestion that there was, in fact, no movie played, but then stated that she was not 100 percent sure of this.
60In terms of the gaps or blanks in her memory, the complainant testified that she has tried to reconstruct those blanks by piecing together certain things. These attempts to fill in the blanks began as early as the morning after the incident.
61The complainant acknowledged that she does not recall the sequence of positions during vaginal intercourse. She does not remember how long each sexual activity lasted. She rejected the suggestion that when the accused returned from the washroom after washing off the blood, they had vaginal as opposed to anal sex. She agreed that she was “really quite intoxicated” at that point, but asserted that she vividly recalls when the accused observed the blood, and that when he returned from the washroom, he positioned her and penetrated her anally.
62At the preliminary hearing, the complainant testified that she first expressed reservations about having sex with the accused when he started to put his hand under her shirt. She testified at that hearing as follows:
So next, we’re kind of just sitting there. He goes over to kiss me. At this point, I’m fine with it, I kissed him back. It slowly progresses to making out a little bit. Again, I’m still okay with that. Then, he goes to put his hand under my shirt, and at that point, I mention that we haven’t known each other very long, and I would prefer that we not do anything. But he kind of talked me into going forward a little bit, and at that point, I was still okay with progressing at that point towards vaginal sex.
63However, during her police interview on June 9, 2016, the complainant stated that she made the comment about their not knowing each other for very long when the accused, during foreplay, moved his hand down her leg and digitally penetrated her prior to vaginal sex. Her statement to the police was as follows:
Q. Okay. So he starts touching your breast.
A. Yes.
Q. What’s the next thing that happens?
A. Um, he - , this is where it starts getting really fuzzy. Um, he goes to move his hands down to my leg, quick inside my vagina. Um, and that’s when I kind of stop him and say maybe this isn’t the best idea. We’ve only, you know, known each other a day.
Q. How did it stop?
A. I kinda like moved my hand but I, I didn’t, it’s not that I couldn’t stop like stopped his hand ‘cause he was a lot stronger than me and I was gone, drunk.
64In her statement to police, the complainant described this digital penetration prior to vaginal intercourse as “really rough”:
So he, before he actually like penetrates me he like, um, put his fingers in me and really roughly like fingered me … At this point, I am not wearing pants but I’m wearing underwear still.
65This was the complainant’s only reference during her police interview to the accused having fingered her vagina. She made no mention in that statement to police of the accused having fingered her vagina, roughly or otherwise, after vaginal sex and before anal intercourse. She testified that she was telling the truth when she spoke to the officers.
66The complainant’s statement to police conflicts with her evidence at trial, where she testified that the “rough” digital penetration took place after vaginal sex and at the same time that the accused was choking her. When this discrepancy in her testimony was brought to her attention, the complainant testified that she was “pretty sure” that the accused would have fingered her before vaginal sex, but had no independent recollection of his having done so. In re-examination, when asked if she could say at what point he digitally penetrated her, she repeated that she was “pretty sure” that it was before vaginal sex. However, she described the penetration as “light” and stated that it and the general foreplay was consensual.
67In terms of the sexual activity between herself and the accused, the complainant testified that she consented to the kissing and vaginal intercourse, but not to having anal sex. She testified that she believed she did not try to “fight off” the accused because he was much bigger than she was. She testified that she is 5 feet 9 inches tall and weighed 170 to 175 pounds at the time. The accused was 6 feet 6 inches tall and weighed 200 pounds. The complainant described him as having a thin build. He told her that he was “into running.”
68The complainant testified that the accused never threatened her. When asked if she could have left the apartment at any point had she wanted to leave, she stated “no,” that she was too intoxicated. She also stated that during anal sex, the accused had his hand between her shoulder blades, pinning her down. She did not recall, however, what kind of pressure he was exerting on her – whether it was hard or otherwise. During that time, her face was sometimes in the couch and she could not see.
69The complainant testified that she did not have a lot of experience with drinking at the time of this incident. She had never previously had four to five Tallboys over a period of one-and-a-half to two hours.
Communication between the Complainant and the Accused on May 21 and 22, 2016
70The complainant testified that on Saturday, May 21, the accused sent her a number of messages on Snapchat, asking her to come over to his place. He would have been aware, through Snapchat, that she was reading his messages but not responding to them. Communications on Snapchat are not preserved unless one of the parties takes a screenshot of them.
71At some point, the accused sent the complainant the message: “Go die.” The complainant took a screenshot of this message, which has been filed as an exhibit. The accused, who would have been notified via Snapchat that she had taken the screenshot, then sent her a number of angry messages, calling her a bitch and referring to the “terrible” night. (These messages were not preserved or filed as exhibits.) The complainant then blocked the accused from communicating any further with her on Snapchat.
72On Sunday, May 22, at 1:50 p.m., the accused texted the complainant: “Hey what’s going on.” The complainant replied by text: “I said no and you ignored me. I have absolutely nothing to say to you Austin. Please leave me alone.” The accused responded: “You said no to what?” The complainant agreed that this was the first time after sex with the accused that she had explicitly drawn his attention to the fact that she said ‘no’ to something during sex. The complainant and the accused had no further communication following these text messages.
Medications taken by the Complainant
73At the time of this incident, the complainant was taking three different medications for depression and anxiety: Wellbutrian; Abilify; and Zoloft. She had been on Wellbutrian and Abilify for six months prior to May 20, 2016. Her psychiatrist had either just prescribed Zoloft or changed the dosage the day before this incident.
74The complainant could not recall if she had ever consumed alcohol while taking Wellbutrian and Abilify. She was certain, however, that she had never combined Zoloft with alcohol. After this incident, she noticed that Zoloft and/or the other prescribed drugs she was taking amplified the effects of any alcohol she consumed, or made her “drunker faster.” She had not anticipated this effect on May 20, 2016. It was an unexpected reaction.
75At no time did the complainant tell the accused that she was on these medications.
Complainant’s Attendance at the Hospitals on Saturday, May 21, 2016
76The complainant testified that on Saturday morning, she was in a lot of pain. It was hard for her to walk or use the washroom. She noticed both anal and vaginal bleeding. She decided to see a doctor just to make sure that “everything was okay.” She denied the suggestion that it was when she saw the bleeding that she came to believe that she had been sexually assaulted.
77The complainant arrived at the Centenary Health Centre around 11:00 a.m. on Saturday morning. From there, she was sent by taxi to the Scarborough Hospital so that a sexual assault kit could be completed. The complainant declined to have the kit done as she had been “bounced” from hospital to hospital and wanted to go home. She did not recall having an internal examination. Her main purpose in going to the hospital was to ease her concerns about the bleeding. She testified that she was told by medical staff that she had slight anal tearing, slight vaginal tearing, and some vaginal bruising. There is no notation in the medical records of any medical staff having actually observed these injuries.
78The complainant had no memory of telling the nurse at Scarborough Hospital that the accused penetrated her mouth with his penis and his fingers, or that he penetrated her anus with his fingers, although those boxes on the medical form have been checked off by the nurse. The complainant made no mention of any of these activities when she was interviewed by the police 19 days later, and has no current recollection of the accused having done any of these things.
79The accused denied putting his fingers in the complainant’s mouth or anus.
80The complainant was given medication to prevent HIV and AIDS, which she took over a three-month period. She also received drugs to prevent STDs, and was given “Plan B,” which is a 48-hour contraceptive. She was told to take Advil for the anal and vaginal pain. The vaginal pain lasted 48 hours. The anal pain lasted one week. She could not recall when the bleeding stopped.
81According to the complainant, she attended another hospital that day after she left Scarborough Hospital. No records, however, were adduced from a third hospital.
The Complaint to the Police: June 9, 2016
82On June 9, 2016, which was about three weeks after this incident, and after having had discussions with her high school mentor, a sexual assault counsellor, her parents, her ex-boyfriend, and her two best friends, the complainant reported this incident to the police.
83The complainant testified that she had follow-up counselling from the psychiatrist and counsellor whom she had been seeing prior to this incident. More recently, she completed a six-week counselling program, which she testified was mostly related to this incident. She has been diagnosed with Post Traumatic Stress Disorder. Her psychiatrist has changed her medication. She currently takes Wellbutrian, Abilify, and Stratera. The latter drug is to help with focus or concentration.
Testimony of Austin White-Halliwell
84The accused testified that he had indicated on his “Plenty of Fish” profile that he was “looking for a relationship,” as opposed to a “hook-up.” He had met three or four other women through that website. One of those dates had led to a two-year relationship.
85The accused testified that he was looking forward to meeting the complainant after exchanging text messages with her, but had no particular expectations about what might come of their meeting. He just wanted to get to know her better. When she suggested delaying the meeting for a day, he was okay with that. When she later changed her mind and decided to come over to his place, he assumed that whatever had ailed her had passed, and that she was well enough to make the trip.
86The accused, like the complainant, suffers from anxiety and depression, for which he had been prescribed Abilify and Venlafaxine. He had just started taking these drugs in the spring of 2016, and had ordered and received them “in bulk” as he planned to be away from the end of May until September to do tree-planting in British Columbia. He testified that he generally tried not to drink while taking the medication. However, he had noticed that when he did drink, the alcohol hit him a “bit harder” as a result of the drugs. He described himself as a social drinker, meaning that he would have a couple of beers two or three times a week.
87The accused testified that he had two beers during the hour preceding the complainant’s arrival at 7:30 p.m. He did not recall if the beers were “Tallboys.” He was “almost sober” when she arrived. He testified that he drank a lot of beer after she left. He could not recall how many beers he consumed after 10:00 p.m., but the quantity was such that it has affected his memory of some of the events that evening.
88The accused recalled greeting the complainant at the door. He offered her a beer. She said “yes,” and they went out to the balcony, where they continued to drink over the next one-and-a-half to two hours. The complainant had three to five beers during that time. He had two to three beers. He never pressured her to drink. When she finished a beer, he asked her if she wanted another one. When she said “yes,” he went and got it for her. If she had said “no,” he would have “just left it.”
89The accused, like the complainant, described their conversation on the balcony as pleasant. During that conversation, the accused asked the complainant if she wanted to stay the night. She said “yes.” He testified that he “threw this question out to her” because he was enjoying her company, and also because she lived some distance away and would be going home alone and late at night. He was concerned for her safety. He testified that sex was not on his mind at that time.
90The accused testified that he never saw anything in the complainant’s behaviour that raised a concern regarding her sobriety or capacity to make decisions. To the contrary, she appeared to be very much in control. As there were no chairs on the balcony, they remained standing the entire time that they were outside. The complainant’s speech was not slurred. She did not stumble or fall, and her walking was fine when they returned to the apartment. They went back inside because it was getting dark.
91At no time did the complainant tell the accused that she was on medication. At no time did she say that she was drunk or incapable of making decisions.
92As for the effect of alcohol on the accused, he testified that when he left the balcony, he felt a “buzz,” and was probably “four” on a scale of one to ten.
93In cross-examination, when asked whether he would have expected to see signs of impairment in the complainant, given the fact that she had consumed three to five beers over the course of two hours, the accused stated that he did not know the complainant’s level of tolerance for alcohol, and that everyone is different. He testified that if he consumed four to five beers over a two-hour period, he would probably still be only “three” or “four” on a scale of one to ten, as he had a fairly high tolerance for alcohol. He would have felt the effects of the alcohol and would not have driven, but would not have described himself as that impaired. (The accused does not drive a car.) He acknowledged that the same amount of alcohol might have a greater effect on the complainant, who weighed 175 pounds as compared to his weight of 200 pounds. He reiterated, however, that the complainant appeared to have no difficulty speaking, walking or making decisions.
94The accused and the complainant sat on the couch, listened to music, and continued talking. He did not recall watching a movie. After about half an hour, he kissed her on the lips, and she kissed him back. They were sitting very close together at that point. He did not ask permission to kiss her, but it seemed “appropriate” in the circumstances. When she reciprocated, they began to French kiss. The kissing lasted about ten minutes, and they started to “make out.”
95The accused did not recall putting his hand up the complainant’s shirt and touching her breast, although he did not deny that this happened. He did recall putting his hand under her underwear and digitally penetrating her vagina or “fingering” her for about five minutes. Again, he did not ask her permission to do this. However, the complainant did not say “no,” and her demeanour or body language led him to believe that she was okay with this – she continued kissing him, she adjusted her body to make it easier for him to get his hand down her pants, and their bodies remained very close or “tight” together. She was also moaning as he fingered her.
96The accused testified that this was the only time during their sexual activity that evening that he digitally penetrated the complainant’s vagina. He used two fingers and described the penetration as neither forceful nor aggressive. He denied digitally penetrating her between vaginal and anal sex.
97After the digital penetration, the accused began to take off the complainant’s pants. There was nothing in her behaviour to indicate that she wanted him to stop. To the contrary, she adjusted her body to make things easier. She straightened her legs and lifted her bum so that he could pull off her pants. He then removed her underwear. He could not recall how or when the complainant’s shirt came off. He stood up to remove his own clothing. When they were both completely naked, he leaned down or over her and asked her “Do you want to have sex?” She responded “yes.”
98The accused testified that they never discussed using a condom, and he did not use one. He stated that in his mind, he thought it was okay to proceed without a condom, in light of how things had unfolded – that is, the “making out” on the couch, the fingering, and her helping him remove her clothes. There was also a brief pause before they started having vaginal sex. The complainant never asked him if he had any condoms or suggested that he use a condom. He thought it was okay, in these circumstances, not to use one.
99During intercourse, the complainant remained on the couch. She leaned back, and the accused pulled her closer to him, leaning in so that he was on top of her. Her legs were in the air and on a level with his shoulders. The complainant did not resist him as he moved her into this position. Intercourse lasted about five to eight minutes.
100The accused described the force used during vaginal sex as “casual” or “not rough.” During intercourse, the complainant’s hands were on his body. She made eye contact with him, and generally appeared to be enjoying it. She was quite vocal – that is, she was moaning. There was no indication that she wanted him to stop. At no point did she say “no” or try to get away.
101The accused testified that during the middle of intercourse, when the complainant had her back against the back cushion of the couch and he was on top of her, he “spontaneously,” and without first asking for her permission, put his left hand on her neck, and applied “a little pressure.” He testified that he had done this in the past with others who enjoyed it, and decided to “try it out” with the complainant. However, he removed his hand after a few seconds when he sensed that the complainant was not enjoying it. She did not try to move his hand or push him away, but “there was no sign she wanted it there so I took it off.” This was the only time that he placed his hand on her neck. He could not recall if he ever kissed her neck or left a mark or hickey on her neck.
102According to the accused, the next phase of their sexual activity was anal sex. According to the complainant, the next phase was vaginal sex while the accused was positioned behind her and she was face-down on the couch. In cross-examination, the accused testified that he had no recollection of them having vaginal sex in that position, but agreed that it was a possibility.
103The accused testified that after vaginal sex, they both stood up. He turned her around so that he was standing behind her, pulled her closer, and asked her if she would like to have anal sex. She said “yes.” He did not ask her if she had ever had anal sex before, or if she wanted to use a lubricant. Neither of them mentioned a condom. He did not ask her if she had any sexually transmitted diseases. In cross-examination, he agreed that he was putting himself at risk, but stated that he was, in the circumstances, prepared to take that risk. He felt that the complainant was an honest person, and that if she had a sexually transmittable disease, she would have told him about it when they started to “make out.”
104During anal sex, the complainant was bent over at the waist, and was supporting herself with her hands on the back part of the couch cushion. The accused was standing and had his hands on her hips, pulling her into him. He testified that anal sex with the complainant was not painful for him – he had no difficulty inserting his penis into her anus. At no point did the complainant cry out or indicate that it was painful for her. Had she done so, he would have stopped. She never told him to stop. She was moaning, looking back at him, and appeared to be enjoying it.
105The accused testified that after ten or fifteen minutes, he saw that the complainant was bleeding from the anus. He had not intended to injure her or cause bleeding. He told her about the blood, asked her if she was okay, and went to the washroom to clean off the blood. When he returned from the washroom, the complainant was sitting on the couch. She did not appear to be hurt, and never told him that she was in pain. He asked her if she wanted to continue having sex. She said “yes,” but they decided to have vaginal sex until he ejaculated. During vaginal sex, which lasted about five minutes, she was lying on the couch with her legs in the air. He was leaning down or on top of her, with his feet on the floor. He did not recall where he ejaculated, but was sure that it was not inside her. He had no recollection of having ejaculated on her face.
106The accused testified that the complainant never told him that she was hurting. He never observed any vaginal bleeding. If he had, he would not have continued to have intercourse with her.
107In cross-examination, the accused stated that he was unaware that there is a risk of infection or the transfer of bacteria by switching from anal to vaginal sex. He could not say whether the complainant was aware of such a risk. He denied the suggestion that he resumed anal intercourse with the complainant after he returned from the bathroom. He reiterated that he and the complainant had vaginal intercourse and that it was with the consent of the complainant.
108The accused testified that after he ejaculated, he stood up. The complainant stood up “really fast” and went to the washroom. There was nothing irregular about the way in which she was walking. He stayed in the living room. When she returned, she was dressed and said that she was leaving.
109The accused testified that he was surprised, taken aback, upset, and angry that she was leaving. They had just had sex, and she had told him when they were on the balcony that she would be staying the night. That was the only time that he had asked her if she would stay. There was no indication that she had changed her mind about staying until she came out of the washroom. He attributed part of his anger to the fact that he felt rejected.
110The accused testified that the fact that she left so promptly indicated that “something could have been up,” but again, he was taken by surprise. He did not know why she was leaving so quickly. He wanted her to stay because he had enjoyed her company and wanted more time with her. Although he was surprised that she was leaving, he was not worried about her as there had been no indication that she was “in a bad way”: she had her wits about her and did not appear to be intoxicated. She just decided to end the night.
111The accused did not recall what he said in response to her announcement that she was leaving, but acknowledged that he was angry and that words were exchanged. Their interaction lasted less than 30 seconds. When asked in cross-examination if he apologized to her, he stated that he had nothing to apologize for, as “everything was consensual.”
112The accused acknowledged that after some time, when the complainant failed to respond to his message “Get home safe” at 10:02 p.m., he texted her “Thanks for the terrible night” and “Rather of kept all that beer to myself.” He explained that he felt let down, and “got carried away in the moment” while continuing to drink more beer. He testified that he drank about five beers in less than an hour, and that the effects of the alcohol definitely played a role in his sending the “mean” text messages.
113The accused testified that he messaged the complainant on Snapchat the following day to check in with her and see how she was doing, as she had left so abruptly the night before. He testified, “I honestly did not understand why she left.” When she did not respond to any of his messages, he sent the message “Go die.” He testified that he has no current memory of sending this message, but did not deny that he sent it. He testified that he was angry and confused by the complainant’s failure to respond to his messages. He thought that they had a good night together and that there had been “good chemistry” between them.
114On Sunday, May 22, the accused texted the complainant: “Hey, what’s going on?” He testified that he was reaching out to her to see if she wanted to talk again or “hang out.” The complainant responded, “I said no and you ignored me. I have absolutely nothing to say to you Austin. Please leave me alone.” The accused testified that he had no idea what she was talking about, and responded with the text message, “You said no to what?” That was his last communication with her.
115The accused left for British Columbia at the beginning of June. Arrangements for that trip had been made prior to May 20, 2016. On June 13, 2016 his brother texted him that the police had come by the apartment. The accused immediately called the number left by the police and spoke to Detective Paul Shanly. The detective told him that there was a charge against him, but would not disclose what the charge was or the nature of the complaint. He also told the accused that there was a warrant for his arrest, and that if he wished, the police would assist him in making arrangements to return to Toronto. The accused decided to stay in British Columbia until his tree-planting job ended. On September 1, 2016 he flew back to Toronto on a ticket purchased in his own name. He was arrested at the airport. It was only after his arrest that he learned that the charge related to allegations made by the complainant.
The Law
Test to be applied in a charge of sexual assault causing bodily harm: R. v. Zhao
116In Zhao, at para. 107, the Court set out the test to be applied in cases where the accused is charged with sexual assault causing bodily harm. The test was broken down as follows:
The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.
The jury must be satisfied beyond a reasonable doubt that the intentional application of force to the complainant took place in circumstances of a sexual nature such as to violate the complainant’s sexual integrity.
The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.
If, in addition to the above three criteria, the jury is satisfied beyond a reasonable doubt that the accused intended to inflict bodily harm upon the complainant (a subjective criterion), then consent is irrelevant, and the accused would be found guilty of sexual assault causing bodily harm.
If the jury is not satisfied beyond a reasonable doubt that the accused intended to cause the complainant bodily harm, then they would need to go on to consider whether they are satisfied beyond a reasonable doubt that the complainant did not consent to the intentional application of force by the accused.
117At paras. 108-109, the Court clarified that consent is only vitiated where the bodily harm is both intended and caused by the accused. If the Crown has not met its burden in this regard, then the trier of fact must go on to consider whether the Crown has established beyond a reasonable doubt the included offences of sexual assault simpliciter or assault simpliciter:
The test from Quashie, as clarified above, demonstrates that consent is not vitiated in all circumstances of sexual assault causing bodily harm, but instead, only in those circumstances where bodily harm was intended and in fact caused. Where the accused did not intend to cause bodily harm, consent is available as a defence, if bodily harm is inadvertently caused.
In addition, these instructions are only relevant when considering the offence of sexual assault causing bodily harm, and cannot be used as a pathway for the jury to make findings with respect to the included offences of either sexual assault simpliciter or assault simpliciter. In the event, based on the evidence, if sexual assault simpliciter and/or assault simpliciter are to be considered by the jury, then an appropriate charge for those offences would have to be given.
Consent
118Consent in the context of a sexual assault trial is defined in s. 273.1(1) as the voluntary agreement of the complainant to engage in the sexual activity in question. In Ewanchuk, Major J., in speaking for the majority of the court, stated that the absence of consent is “subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.” At para. 27, he noted that “the actual state of mind of the complainant is determinative.” There is no such thing as implied consent. Either the complainant consented or she did not.
119Thus, if the trier of fact finds beyond a reasonable doubt that sexual touching took place and that the complainant did not consent, the actus reus of the offence has been proven. The actus reus takes into account only the complainant’s state of mind. It does not take into account the state of mind of the accused.
120Pursuant to s. 273.2 of the Criminal Code, it is not a defence to a charge under s. 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
121As stated in R. v. Darrach, (1998), 1998 CanLII 1648 (ON CA), 38 O.R. (3d) 1 (C.A.), s. 273.2(b) introduced a modified objective component into the mens rea of sexual assault. It is personalized according to the subjective awareness of the accused at the time. The accused is to take “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” In other words, the accused is not under an obligation to determine all the relevant circumstances – the issue is what he actually knew, not what he ought to have known: Darrach, at para. 88.
122In addition, while s. 273.2 requires reasonable steps, it does not require that all reasonable steps be taken. The provision does not require that a mistaken belief in consent must be reasonable in order to exculpate. The provision merely requires that a person about to engage in sexual activity take “reasonable steps … to ascertain that the complainant was consenting.” Were a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis: Darrach, at paras. 89-90.
The Issues
123The issues raised in this case are:
Has the Crown established beyond a reasonable doubt that Mr. White-Halliwell intended to inflict bodily harm upon the complainant (a subjective criterion), thereby vitiating any consent that was given to anal intercourse? If so, the accused would be guilty of sexual assault causing bodily harm.
If the Crown has not established beyond a reasonable doubt that Mr. White-Halliwell intended to inflict bodily harm upon the complainant, has the Crown established beyond a reasonable doubt that the complainant did not consent to anal sex? If the Crown has not established that the complainant did not consent to anal sex, then the accused must be found not guilty.
If the Crown has established beyond a reasonable doubt that the complainant did not consent to anal sex, has the Crown also established beyond a reasonable doubt that Mr. White-Halliwell did not have an honest but mistaken belief that the complainant consented to anal sex, bearing in mind that it is no defence to the charge where the accused’s belief arose from his self-induced intoxication, recklessness or wilful blindness, or he did not take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting?
Matters not in issue
124As stated earlier, Ms. Sweeny does not take the position that the complainant lacked the capacity to consent to sexual activity with the accused. The position of the Crown is that despite her high level of intoxication, the complainant had, at all material times, an operating mind, and was capable of consenting to anal intercourse with the accused.
125Also, as earlier indicated, the defence acknowledges that the slight anal tearing, slight vaginal tearing, and vaginal bruising constitute bodily harm. However, Mr. Heller submits that the Crown has failed to establish that the accused intentionally caused that harm.
126The defence does not take the position that the complainant was insincere in her account of what took place in the accused’s apartment. However, the position of the defence is that although the complainant may honestly believe that she was sexually assaulted, her evidence is not sufficiently reliable upon which to make a finding of guilt, given her level of intoxication, the problems with her memory, inconsistencies in her evidence, the improbability of some aspects of her testimony, and the lack of supporting physical evidence.
Analysis and Findings
127There is no evidence of a pre-arranged plan on the part of Mr. White-Halliwell to sexually assault the complainant. The accused had indicated on his Plenty of Fish profile that he was looking for a relationship as opposed to a “hook-up.” His meeting with one woman through the same website some years earlier had led to a long-term relationship.
128There was no mention of sex by either the accused or the complainant during their exchanges on Plenty of Fish, on Snapchat, in their text messages or during their telephone conversation. Their interactions on May 20 led the accused to ask the complainant if she was interested in getting together with him that day. He suggested beers on the balcony or a walk on the beach. The complainant chose the first option. The accused displayed no frustration or displeasure when the complainant suggested postponing their meeting. As it turned out, she took some Tylenol, felt better, and arrived at his place around 7:30 p.m.
129The evidence does not support the suggestion that the accused pressured the complainant to drink beer or was trying to get her drunk so that he could take advantage of her. The complainant, at one point during cross-examination, stated that whenever she finished a beer, the accused brought her another one without asking her if she wanted it, implying that she should keep drinking. However, this was inconsistent with both her testimony at the preliminary hearing and her examination-in-chief at trial, where she testified that each time that she finished a beer, the accused asked her if she wanted another one, and that she responded, “yes.” The complainant ultimately adopted her testimony at the preliminary hearing and affirmed that her evidence-in-chief was accurate.
130Crown counsel submits that the accused must have known that the complainant had become highly intoxicated while on the balcony and that she was in that state when they went back inside the apartment. The evidence, in my view, suggests otherwise.
131First, it is not entirely clear how many beers the complainant actually consumed over the course of one-and-a-half to two hours while she was on the balcony. She testified that she drank four or five beers. However, it appears from the medical records that she told the nurse the day after the incident that she drank three beers. The complainant did not deny making this statement. I recognize, however, that she did not expressly adopt it as she had no recollection of having made it.
132On June 9, 2016 the complainant told the police that she had four beers. By the time she testified at the preliminary hearing, which was on September 13, 2017, her recollection was that she had consumed four to five beers.
133The accused estimated that the complainant drank three to five beers.
134The complainant would obviously be less affected by alcohol if she consumed three beers as opposed to five. No expert evidence was adduced as to what the blood/alcohol readings would be for an individual who drank three, four, or five Tallboys over the course of one-and-a-half to two hours, and who was a similar height and weight as the complainant. The complainant testified that she is 5 feet 9 inches tall and that she weighed 170 to 175 pounds in the spring of 2016. I note, however, that her weight was recorded at the Centenary Health Centre and the Scarborough Hospital as 90 and 90.7 kilograms, respectively, which is approximately 198 pounds, or about the same weight as the accused at the time.
135No expert evidence was adduced as to how the prescribed drugs that the complainant was taking could have affected her when combined with the alcohol that she had consumed.
136Second, I note that throughout the one-and-a-half to two-hour period that the complainant and the accused were on the balcony, they remained standing. There were no chairs on the balcony, although there was a railing against which they could have leaned. The complainant made no mention in her testimony of being wobbly on her feet or having had any trouble maintaining her balance during that time. Although she described herself as “very intoxicated” and at “eight” on a scale of “one to ten” when she re-entered the apartment, she also stated that she still had motor control, was able to walk, and had her wits about her. She made no mention of stumbling, falling, slurring her speech, or having any difficulty in speaking. The accused testified that the complainant did not stumble or fall, and her walking was fine when they came back inside. His opportunity to observe her walking, of course, would have been somewhat limited, as she presumably did not have to walk a great distance in order to get to the couch.
137The reasons for their re-entering the apartment were not related to the complainant’s state of sobriety or lack thereof, or how she was feeling. The complainant testified that they went inside because it was getting cold. The accused testified that they went inside because it was getting dark.
138The complainant acknowledged that she made no comment to the accused that she was feeling drunk or incapable of making decisions. She did not tell him that she was taking any medication that could exacerbate the effects of the alcohol that she had consumed.
139According to the complainant, her level of intoxication peaked sometime after she was already seated on the couch, which would have limited the accused’s opportunity to observe whether she was having any difficulty with balance or motor control. Based on her own evidence, the complainant was able to communicate with the accused, reminding him, either when he was touching her breast or when he was fingering her vagina, that they had not known each other very long. She was also able to support herself to a certain extent with her arms on the couch when the accused was having vaginal intercourse with her from behind.
140Based on all of the evidence, I find that it was reasonable for the accused to believe that the complainant was not incapacitated and was capable of consenting to sexual activity after they left the balcony and were seated on the couch.
141I note that Mr. White-Halliwell’s only opportunity to observe the complainant walking after they had left the balcony and gone to the couch was when she got up to use the washroom. He testified that she did not appear to have any difficulty walking at that time, or after she left the washroom and exited the apartment. The complainant herself did not mention having had any trouble standing up, getting dressed, or walking to the washroom. While in the washroom, she performed tasks that required fairly fine motor skills, such as removing her contact lenses and sending text messages. She left the apartment shortly thereafter and walked to the subway station. This was just before 10:00 p.m. which, based on her evidence, would only have been a short time after she says that her level of intoxication had peaked.
Whether the accused asked the complainant if she wanted to stay the night while they were on the balcony
142Mr. White-Halliwell testified that it was while they were on the balcony that he asked the complainant if she wanted to stay the night, and that she said “yes.” The complainant denied that he asked her this question at that time. She testified that he first posed the question sometime after the sex became “rougher,” and that she told him “yes” because she was scared. This conflicted with the evidence she gave at the preliminary hearing, where she testified that the accused had first asked her whether she would stay the night when they were on the balcony. The complainant refused, however, to adopt her prior testimony, stating that she would “go with what she feels today.” She took the rather untenable position that her memory was not necessarily “fresher” at the preliminary hearing, despite the fact that it was closer in time to the day of the incident.
143I accept the accused’s testimony that it was while they were on the balcony that he asked the complainant if she wanted to stay the night, and that she said “yes.” The accused testified that he asked this question because the complainant lived some distance away and would be going home alone and late at night. He testified that sex was not on his mind at the time, and that he posed the question more out of concern for her safety. In other words, he did not take the complainant’s answer that she would stay the night as amounting to consent on her part to sexual activity. He testified that he only asked her this question once – that is, while they were on the balcony.
144The complainant testified that the accused asked her this same question multiple times that evening, and that she always said “yes” up until the point when she was leaving the apartment.
Events after the accused and the complainant came in from the balcony
145Mr. White-Halliwell and the complainant came in from the balcony somewhere between 9:00 and 9:30 p.m. The complainant left the apartment just before 10:00 p.m. During the 30 to 60 minutes before she left, they listened to music and possibly watched part of a movie. According to both the accused and the complainant, he kissed her and she kissed him back. The accused did not ask for permission to kiss her but testified that they were sitting very close together and it seemed appropriate in the circumstances. He estimated that they kissed for ten minutes and then “made out.” This accords with the complainant’s evidence.
146The complainant testified that the accused put his hand up her shirt and touched her breast. She consented to this touching. The accused did not recall touching her breast but did not deny doing this.
147The accused recalled that he put his hand under the complainant’s underwear and digitally penetrated her vagina or “fingered” her for about five minutes. Again, he did not ask her permission to do this. However, he testified that it was clear from her actions that she consented to this activity: she continued kissing him, and adjusted her body to make it easier for him to get his hand down her pants. Their bodies remained very close. According to the accused, this was the only time that he “fingered” her vagina.
148During her examination-in-chief, the complainant made no mention of the accused having digitally penetrated her vagina prior to their having consensual vaginal intercourse. However, in cross-examination, she testified that she was “pretty sure” that he would have fingered her vagina prior to vaginal sex, but had no current recollection of his having done so. In re-examination, she repeated that she was “pretty sure” that before vaginal sex, there would have been “light” digital penetration and general foreplay, which was consensual.
149During her police interview on June 9, 2016, the complainant painted a completely different picture of the digital penetration prior to vaginal sex. She told the police that the accused fingered her “really roughly” while she was still wearing her underwear. In her statement, she made no mention of his having digitally penetrated her vagina at any other time that night. I will address this aspect of her testimony later on in these reasons.
150In any event, the complainant’s evidence at trial was that she consented to the kissing, the touching of her breast, the digital penetration of her vagina, and vaginal intercourse.
151Crown counsel submitted that the complainant was somehow confused as to what constitutes “consent.” Ms. Sweeny suggested that in the complainant’s mind, she believed that she “consented” to vaginal sex because she did not fight back or voice an objection. However, the complainant never testified that she was confused about the meaning of consent. She testified that things progressed slowly from the point when the accused was touching her breast to the point when they were having vaginal sex. During cross-examination, when questioned about her comment to the accused at some point during foreplay that they had not known each other for very long, she made it clear that the accused did not “talk her into” having intercourse, and that she was “okay with progressing to vaginal sex.” She testified, however, that the accused never asked for her verbal consent.
152According to Mr. White-Halliwell, he did, in fact, ask the complainant if she wanted to have sex, and she responded “yes.”
153Crown counsel submits that the accused’s testimony that he asked for and received the complainant’s verbal consent is not credible, and should be rejected as self-serving.
154In assessing this aspect of Mr. White-Halliwell’s testimony, as well as his testimony as a whole, I take into account a number of factors, including the fact that there were several occasions in which he could have given self-serving evidence but instead, made admissions against his own interest. Mr. Heller submits that these admissions against interest enhance the accused’s credibility; for example, i) Mr. White-Halliwell admitted that he did not ask for the complainant’s verbal consent to kiss her, touch her breast, or digitally penetrate her vagina. ii) he admitted that he did not ask for her consent before placing his hand on her throat and applying pressure, albeit, according to him, only light pressure, and only for a few seconds; iii) he acknowledged that he took the lead in terms of their various positions during the sexual activities, thereby admitting that the complainant was the more passive participant; iv) he acknowledged that he was angry when the complainant told him that she was leaving, and that “words were exchanged,” although he could not recall exactly what he said to her at that time; and v) he admitted that he became angry the next day and that his emotions got the better of him when he felt rejected after the complainant failed to respond to his messages.
155I note that since there were no other witnesses present when they were drinking beer on the balcony, it would have been easy for the accused in his testimony to minimize the amount of beer that the complainant drank, thereby bolstering his own evidence that she appeared to be sober and quite capable of making decisions. However, he did not do that. Mr. White-Halliwell testified that to the best of his recollection, the complainant consumed between three to five beers, which was close to the complainant’s own estimate of her beer consumption.
156In terms of the reliability of the complainant’s evidence that the accused never sought her verbal consent to have vaginal sex, I take into account her acknowledgement that a lot of what happened after she and the accused left the balcony is a blur. She could not pinpoint exactly when her “memory issues” arose, but things started to get fuzzy during foreplay and prior to the accused touching her breast. She testified that she could not recall the “specifics” leading up to vaginal intercourse, and acknowledged testifying at the preliminary hearing that she was close to blacking out from alcohol. There are gaps or blanks in her memory, which she has tried to reconstruct by piecing together certain things. As a result of the alcohol that she consumed, in combination with the medication that she was taking, it is quite feasible that one of the “specifics” that she has forgotten leading up to vaginal intercourse was a question posed to her by the accused as to whether she wanted to have sex, and that she indicated that she did.
157In all of the circumstances, the complainant’s denial that the accused sought and received her verbal consent before they engaged in consensual vaginal sex is not reliable. The accused may have asked for and received her consent, but she simply does not recall this exchange.
Whether the Crown has established that the accused intended to cause bodily harm to the complainant
i) The slight anal tearing
158The complainant’s evidence and that of Mr. White-Halliwell were in direct conflict with respect to whether or not he asked for her verbal consent to have anal sex. The accused testified that he asked for her consent and received it; the complainant testified that not only did he not ask for her consent but that he proceeded to engage in anal sex over her objections and while she was telling him to stop. Again, there are concerns with respect to the reliability of the complainant’s evidence in this regard. However, I will first address the issue of whether the Crown has established beyond a reasonable doubt that the accused intended to cause what was described by the complainant as slight anal tearing.
159The complainant testified that when Mr. White-Halliwell saw the anal blood, he stopped, and told her that she was bleeding. She testified that he appeared to be “disgusted” by this turn of events, and that he went to the washroom to wash off the blood. However, when he returned, he resumed having anal intercourse with her without her consent. I agree with Crown counsel’s submission that if, in fact, the accused engaged in anal intercourse with the complainant a second time, knowing that she was already injured, that act would constitute strong evidence that he intended to cause her bodily harm, or that he was at least reckless or willfully blind as to whether he was causing her bodily harm.
160On the other hand, as defence counsel submits, the fact that Mr. White-Halliwell stopped having anal intercourse with the complainant when he noticed the blood is an indication that he did not want or had not intended to cause her bodily harm. The evidence indicates that he was, at the very least, surprised to see the blood. He immediately stopped, told the complainant that she was bleeding, and went to the washroom to clean off the blood. The accused denied that he and the complainant had anal sex when he returned to the living room. The question arises as to why Mr. White-Halliwell would stop and bother to wash off the blood if he was intent on continuing to have anal intercourse with her in any event.
161Mr. White-Halliwell testified that when he returned to the living room, the complainant was seated on the couch. This accords with the complainant’s statement to police on June 9, 2016: she told the police that she remembered sitting back down on the couch while the accused was in the washroom. The accused testified that the complainant did not appear to be in any pain. He asked her if she was okay to continue having sex. He testified that he would have continued having anal sex with her had she consented. However, they agreed to have vaginal sex until he ejaculated. Thus, according to Mr. White-Halliwell, their last sexual activity that evening was vaginal intercourse.
162In assessing the complainant’s evidence that the last sexual activity was anal intercourse, I take into account her admitted “memory problems” as earlier described. She admitted to having difficulty in recalling the sequence of the various positions during vaginal intercourse. It also appears that her memory as to the sequence of other events is problematic. For example, I note the inconsistency between her evidence at trial and her statement to police as to when the “rough” fingering allegedly occurred. At trial, she testified that the accused digitally penetrated her vagina in a rough way after consensual vaginal intercourse and before anal sex. However, in her police interview, which was less than three weeks after the incident, she stated that the “rough” fingering took place early on in their sexual activity – that is, while she was still wearing her underwear, and prior to her consenting to have vaginal intercourse. Although the complainant testified that she recalled the anal intercourse “vividly” or “fairly strongly,” she also acknowledged that her memory of it was “not perfect.”
163The complainant may honestly believe that anal sex took place after the accused returned from the washroom. However, given the concerns with respect to the reliability of her evidence – that is, the accuracy of her memory – I am not satisfied that this was, in fact, the case. Given this finding, and the fact that Mr. White-Halliwell stopped anal intercourse as soon as he saw that the complainant was bleeding, I am not satisfied beyond a reasonable doubt that he intended to cause her any anal injury, or that he was reckless or wilfully blind as to whether he was causing her such injury.
ii) The slight vaginal tearing and bruising
164Based on the complainant’s evidence, the slight vaginal tearing and bruising occurred during the “rough fingering.” As noted above, the complainant testified that the accused digitally penetrated her vagina in a rough way after consensual vaginal intercourse and while he was choking her. However, she told the police that the rough fingering occurred when she was still wearing her underwear, and prior to consensual vaginal sex. She testified that she was telling the truth when she spoke to the officers. If her statement to police represents the correct sequence of events, the complainant herself may not have realized that the “fingering” had caused her any injury: there is no evidence that she experienced or complained to the accused about any vaginal pain during the consensual vaginal sex that followed it.
165Mr. White-Halliwell testified that the only time that he digitally penetrated the complainant’s vagina was prior to their having consensual vaginal sex and that it continued for about five minutes. At no point that night did he notice any vaginal bleeding. Nor did the complainant. She did not observe any vaginal blood until the following morning. In all of the circumstances, I am not satisfied that Mr. White-Halliwell intended to cause any vaginal injury to the complainant.
166In summary, having considered and weighed all of the evidence, I am not satisfied beyond a reasonable doubt that the accused intended to cause either anal or vaginal injuries to the complainant.
Has the Crown established beyond a reasonable doubt that the complainant did not consent to anal intercourse?
Testimony of Mr. White-Halliwell
167As stated at the outset of these reasons, the principles set out in W.(D.) apply. I must acquit Mr. White-Halliwell if I believe his evidence or, even if I do not believe his evidence, I am left with a reasonable doubt by it. If I am not left in doubt by his evidence, then I must determine whether, on the basis of the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.
168In assessing Mr. White-Halliwell’s evidence, I have considered it in the context of all the evidence.
169Mr. White-Halliwell has testified that he sought and received the complainant’s verbal consent before they had anal sex. He testified that during anal sex, the complainant was bent over at the waist, and was supporting herself with her hands on the back part of the couch cushion. He was standing and had his hands on her hips, pulling her into him. At no point did the complainant cry out or indicate that she was in pain. On the contrary, she was looking back at him and appeared to be enjoying the sex. She was moaning, as she had done during vaginal sex, which he took as an indication of her enjoyment. Had she tried to resist him, cried out or told him to stop, he would have stopped. He did stop when he saw the blood. They did not resume having anal sex but had consensual vaginal intercourse after he returned from the washroom.
170There was nothing in the accused’s demeanour or the manner in which he testified that would indicate that Mr. White-Halliwell was being untruthful. He was not evasive, and answered the questions posed to him in a direct and straightforward manner.
171As I observed earlier, there is no evidence of a pre-arranged plan by Mr. White-Halliwell to sexually assault the complainant. He had indicated on his Plenty of Fish profile that he was looking for a relationship, as opposed to a “hook-up.” There was no mention of sex by either him or the complainant during their communications prior to the complainant’s attendance at his apartment. I have found that he did not pressure the complainant to drink beer or try to get her drunk in order to take advantage of her. The exact number of beers that she consumed is not known, but it was a minimum of three and a maximum of five. The accused was unaware that the complainant was also taking certain prescribed drugs. Based on all of the evidence, and for the reasons already given, I have found that it was reasonable for Mr. White-Halliwell to believe that the complainant was not incapacitated and was capable of decision-making when they left the balcony and sat on the couch. The complainant herself testified that she was still able to walk and had her wits about her at that time. She also testified that at no point during her interaction with the accused that night did he appear to be intoxicated.
172Defence counsel submits that Mr. White-Halliwell’s admissions against interest speak to his honesty. For example, he acknowledged that he kissed the complainant, touched her breast and digitally penetrated her vagina without first obtaining her consent. Although I take these admissions into account, I also recognize that the complainant never denied that she consented to all of these acts.
173Mr. White-Halliwell acknowledged becoming angry when the complainant told him that she was leaving after having earlier indicated that she would stay the night. He testified that he had enjoyed her company and wanted her to stay. He stated that part of his anger stemmed from a feeling of rejection.
174Crown counsel submits that Mr. White-Halliwell got angry when the complainant told him she was leaving because he was afraid she would report the matter to the police. This suggestion, however, was never put to the accused in cross-examination. I would also note that it was certainly the complainant’s impression that the accused’s anger was triggered because he wanted her to stay the night, as she had earlier promised.
175I agree with Crown counsel’s submission that Mr. White-Halliwell’s absence of memory with respect to some details is suspect. For example, Mr. White-Halliwell professed to have no recollection of what he said to the complainant when she told him that she was leaving, although he acknowledged that angry words were spoken over a period of about 30 seconds. According to the complainant, he used profanity and called her names. He also told her, “I hope you’re clean,” implying that she may have had a sexually transmitted disease. In my view, it is doubtful that Mr. White-Halliwell would have forgotten having made this particular insulting comment. It is more likely that he simply did not want to admit to having made it.
176The complainant testified that the accused ejaculated on her face. Mr. White-Halliwell testified that he had no memory of where he ejaculated. Again, I find that it is unlikely that he has forgotten this detail.
177Despite the fact that the accused was angry with the complainant for leaving, it appears that his anger dissipated rather quickly, as he texted her “Get home safe” shortly after she was out the door. Mr. White-Halliwell testified that he knew that the complainant was angry or upset when she left, although he did not know why. He sent her this message to make her feel better. However, his anger quickly re-emerged when she failed to respond to the message, which prompted him to send her another message thanking her for the “terrible night” and stating that he wished he had kept the beer for himself. Mr. White-Halliwell attributed his poor judgment in sending this “mean” message to the quantity of beer he had consumed after she left.
178It is clear, however, that Mr. White-Halliwell did not take kindly to the complainant ignoring his messages, even when he was not under the influence of alcohol. The following day, when she continued to ignore his invitations, via Snapchat, to come over to his place, he sent the text, “Go die.” The complainant testified that after she took a screenshot of this message, Mr. White-Halliwell sent her a number of other angry messages, calling her a “bitch” and referring to the “terrible night.” These messages were not preserved. Mr. White-Halliwell testified that he could not recall sending the complainant any messages after the “Go die” message, but acknowledged that he was upset that she was ignoring him.
179Mr. White-Halliwell reached out to the complainant on Sunday, asking her if she wanted to talk or “hang out” with him. The complainant responded, “I said no and you ignored me. I have absolutely nothing to say to you Austin. Please leave me alone.” Mr. White-Halliwell testified that he had no idea what the complainant was talking about; hence, his response, “You said no to what?”, which is consistent with his evidence as to what took place at his apartment on the evening in question. He had no further communication with the complainant.
180Mr. White-Halliwell admitted that during vaginal sex, he placed his hand on the complainant’s neck without first asking for her consent. He described this act as “spontaneous” and lasting for only a few seconds. He applied only light pressure, and removed his hand as soon as he sensed that the complainant was not enjoying it.
181According to the complainant, the accused put his hand on her neck “on and off” or on multiple occasions while “roughly” fingering her vagina with his other hand. She agreed that it was possible that she told the nurse at the Scarborough Hospital that he used two hands to choke her, as indicated in the medical records. In re-examination, she re-iterated that Mr. White-Halliwell used only one hand. Based on the complainant’s testimony, it would be difficult to understand how Mr. White-Halliwell could have used two hands to choke her when she also says that he was digitally penetrating her vagina at the same time.
182The complainant testified that the pressure applied to her neck by the accused was at times “not hard,” or “not heavy pressure.” She also referred to him as only “lightly choking” her. In this sense, her evidence, other than the number of times that she alleges that the choking took place, was in accord with the accused’s testimony. However, she also testified that there were times that he applied such “heavy pressure” to her neck that she almost passed out. She described the pressure to the nurse at the Scarborough Hospital as “eight” on a scale of one to ten. Despite this alleged heavy pressure, the complainant apparently sustained no bruising to her neck. The nurse at the Centenary Hospital Centre noted a hickey on her neck, but added the notation, “otherwise negative.” Similarly, the nurse at the Scarborough Hospital noted no bruising to her neck. The complainant herself did not mention during her testimony that there was any bruising to her neck.
183In cross-examination, the complainant agreed that it was possible that she felt woozy and as though she might pass out as a result of the alcohol that she had consumed, as opposed to the pressure applied to her neck. She maintained her belief, however, that it was the pressure on her neck that caused her to feel woozy.
184The medical records from the Scarborough Hospital indicate that the complainant, when asked how or why the assailant stopped choking her, stated, “He just did.” This accords with the accused’s evidence that he stopped on his own. He testified that his reason for stopping was that he sensed that the complainant was not enjoying it.
185In summary, with respect to the choking incident, there are concerns with respect to the reliability of the complainant’s evidence that the accused applied pressure to her neck on multiple occasions, and that the pressure applied was at times so heavy that she felt she was going to pass out. I also note that the complainant testified that the choking occurred at the same time that the accused was “roughly” digitally penetrating her. However, during her police interview in June 2016, she stated that the “rough” digital penetration took place prior to consensual vaginal sex – that is, at a time when there is no allegation that the accused was choking her. The complainant’s allegation of the combined acts of choking and rough digital penetration following vaginal sex appears to be an allegation that developed in her mind sometime after June 2016, and is an allegation that she honestly believes to be true. This raises serious concerns about the reliability of her evidence not only with respect to that allegation, but also with respect to her evidence as a whole.
186Taking into account all of the evidence, I find that Mr. White-Halliwell’s description of the choking incident could reasonably be true.
187Crown counsel submits that even if the accused’s version of that event is accepted as true, the fact that he placed his hand on the complainant’s neck and applied pressure without first asking her permission speaks to his indifference to her welfare and lack of consent. The act of choking, if not sought or consented to by the recipient, could be terrifying. Ms. Sweeny characterized it as an act of violence and control, and inconsistent with the accused’s testimony that he sought and received the complainant’s consent to anal sex. There is some merit in this submission, although I also bear in mind that the accused described the placement of his hand on the complainant’s throat as “spontaneous” and very brief. According to the accused, he was sufficiently attuned to the complainant’s response that he stopped and removed his hand as soon as he sensed that she was not enjoying it. He did not wait for her to tell him to stop.
188Crown counsel submits that Mr. White-Halliwell’s disregard for the complainant’s welfare and her lack of consent is evident from his reluctance to take responsibility for having caused the anal bleeding. There can be no doubt that the act of anal intercourse resulted in the bleeding, even though, as I have found, it has not been established that the accused intended to cause it. Mr. White-Halliwell did not apologize to the complainant. Other than his “Get home safe” message, he did not express any concern for her welfare. Instead, he said rude and insulting things to her as she was leaving, and expressed vitriol towards her when she failed to respond to his messages the following day, ending with the text, “Go die.” I agree with Crown counsel’s characterization of the accused as self-centred and insensitive.
189Crown counsel submits that an adverse inference against the accused should be drawn from the fact that he remained out west after being advised by Detective Shanly that there was a warrant for his arrest on an outstanding charge, and that the police were willing to make arrangements for his return to Ontario.
190I do not find that this after-the-fact conduct supports an inference of guilt. I note that prior to May 20, 2016 the accused had obtained a summer job planting trees in British Columbia. He followed through with this plan, leaving Toronto by bus on June 1, 2016. On June 13, 2016, after learning that the police wanted to speak to him, he promptly called the number given to him by his brother, and spoke to Detective Shanly. The detective told him that there was a charge against him, but would not disclose what the charge was or the nature of the complaint. Mr. White-Halliwell decided to remain out west until his tree-planting job ended. When he flew back to Toronto on September 1, 2016 there was no attempt by him to evade the authorities. He travelled under his own name, knowing full well that there was a warrant for his arrest. It was only after his arrest that he learned that the charge related to allegations made by the complainant.
191Given all of the circumstances, the accused’s after-the-fact conduct does not support an inference of guilt.
192After considering Mr. White-Halliwell’s evidence as a whole, I cannot say that I find his version of events to be compelling. I am not able to say that I necessarily believe him. However, I am also not in a position to say that I reject his evidence as untruthful. I simply do not know if he is telling the truth on the critical issue, that is, whether the complainant consented to anal intercourse.
Testimony of the Complainant
193As stated at the outset of these reasons, defence counsel does not allege that the complainant was insincere in giving her account of what took place in Mr. White-Halliwell’s apartment, or that she has a motive to falsely accuse him of sexual assault. She may honestly believe that the accused sexually assaulted her. However, Mr. Heller submits that she only came to this conclusion sometime after the evening in question, probably starting on May 21, when she woke up and saw that she was bleeding not only anally but also vaginally. She also realized at that time that there were gaps in her memory about what had transpired the previous night. She acknowledged that she has attempted to fill in those gaps. She acknowledged that many details of what took place after she and the accused left the balcony are fuzzy. The main issue with respect to her evidence is its reliability.
194The complainant conceded that she could not recall the details leading up to vaginal intercourse. She has no current recollection of the accused digitally penetrating her vagina prior to vaginal intercourse. She did not recall if she was naked or partially clad during intercourse. She did not recall whether the accused took off his sweater or was wearing it during sex.
195Defence counsel pointed out a number of inconsistencies in the complainant’s evidence. Some of these inconsistencies are of little moment. For example, the complainant initially testified that she and the accused were on the balcony for an hour, but later stated that they remained there for an hour-and-a-half to two hours. She testified during her examination-in-chief that they watched part of a movie after they came in from the balcony, but in cross-examination stated that she was unsure whether they watched a movie. In her examination-in-chief, she testified that the accused sent her the “Go die” message on Sunday. In cross-examination, she agreed that he sent it on Saturday.
196As earlier noted, the complainant testified during her examination-in-chief, as well as at the preliminary hearing, that each time she finished a beer, the accused would ask her if she wanted another one, and that she responded, “yes.” He would then retrieve the beer for her. However, during cross-examination, she testified that whenever she finished a beer, the accused brought her another one without asking her if she wanted it. The implication was that he was pressuring or encouraging her to keep drinking, with the possible motive of getting her drunk so that he could take advantage of her. The complainant ultimately adopted her earlier evidence as accurate. At the very least, this inconsistency between her examination-in-chief and her cross-examination is a reflection of the complainant’s poor memory.
197The inconsistencies in the complainant’s evidence with respect to the amount of beer that she drank that night have already been reviewed, as well as inconsistencies in her evidence as to when Mr. White-Halliwell first asked her if she wanted to stay the night. With respect to the latter inconsistency, the complainant testified that he asked her if she would stay the night after the sex became “rougher” and that she only said “yes” because she was scared. However, she agreed that at the preliminary hearing, she testified that the accused first posed this question when they were on the balcony, and that she told him “yes.” Despite acknowledging her earlier testimony, the complainant maintained that the accused only asked her this question after they had left the balcony. She stated that she preferred to “go with what she feels today,” even though her testimony at the preliminary hearing was closer in time to the incident.
198The complainant’s evidence was inconsistent with respect to when she first expressed reservations about having sex with the accused. At the preliminary hearing, she testified that she brought up this subject when he started to put his hand under her shirt. However, during her police interview on June 9, 2016 she stated that she brought it up when the accused digitally penetrated her vagina prior to vaginal sex. She told the police that the digital penetration at that time was “really rough.” It is noteworthy that the complainant currently has no memory of the accused having digitally penetrated her vagina prior to vaginal intercourse, although she more or less assumed that he had, and was “pretty sure” that it would have been “light” and part of the general foreplay, which was consensual.
199At the preliminary hearing and at trial, the complainant testified that following vaginal intercourse, the accused aggressively fingered her, causing her pain, and at the same time started to choke her. However, as earlier noted, she stated during her police interview that the rough fingering occurred during foreplay and prior to vaginal intercourse. When speaking to the police, she did not link the rough fingering to the choking, as she did during her testimony at trial.
200In her examination-in-chief, the complainant testified that during anal intercourse the accused had his hand between her shoulder blades, pinning her down. In cross-examination, she was unable to recall or describe the level of pressure he exerted on her back.
201During her police interview, the complainant stated that when the accused went to the washroom to wash off the blood, she sat back down on the couch. It would appear from this statement that she was able to move and had not been rendered immobile as a result of the amount of alcohol she had consumed. However, at the preliminary hearing, the complainant described herself as “just kind of lying” on the couch when the accused left to go to the washroom.
202Defence counsel challenged the complainant’s testimony that she was so drunk that she could not move. Mr. Heller noted that all the sexual activity took place within a relatively short time frame – somewhere between 30 and 60 minutes: the complainant and accused came in from the balcony between 9:00 and 9:30 p.m., and spent some time listening to music before engaging in any sexual activity. The complainant left just before 10:00 p.m. The complainant estimated that the anal sex lasted 15 to 20 minutes, including the sex that took place after the accused returned from the washroom. After the accused ejaculated, the complainant immediately stood up, got dressed, took her purse, and walked to the washroom. She washed her face, removed her contact lenses, and communicated by way of text messages, presumably in a coherent fashion, with a third party. She then walked out of the washroom, put on her shoes, told the accused that she was leaving, and left. She walked to the subway station, which took her ten minutes, and took the subway to Victoria Park.
203Mr. White-Halliwell testified that the complainant had no difficulty standing up or walking to the washroom. The complainant herself made no mention of having any trouble in walking. As mentioned earlier, she was also apparently able to perform tasks that required fairly fine motor skills, such as removing her contact lenses and sending text messages. Yet, according to the complainant, just shortly before she was performing all of these activities, her level of intoxication had peaked and she had reached “ten” on a scale of one to ten. She did not know exactly when she hit the peak of intoxication, but thought that it could have been after vaginal intercourse and while the accused was choking her and fingering her vagina roughly. She testified that she had no motor control, it was difficult for her to talk, and she could not move. The question arises as to how the complainant could have been intoxicated to the point where she was rendered immobile and then, only minutes later, be able to function so well, with no apparent difficulty in walking, talking, getting dressed et cetera. In all of the circumstances, I find it improbable that the complainant was as intoxicated to the degree that she has described and that she could not move.
Lack of supporting physical evidence
204As Mr. Heller observed, there is a lack of supporting physical evidence in this case. A sexual assault kit was not completed. The complainant testified that she did not undergo an internal examination. No photographs of the complainant were taken the day after the incident.
205The hospital records were admitted on the consent of the parties, without the need to call the authors of the reports. Although the complainant testified that she was told by someone at the hospital that she had slight anal tearing, slight vaginal tearing, and vaginal bruising, there is no notation in the records of anyone at either of the hospitals having observed those injuries. There is no description of those injuries. No expert evidence was called with respect to whether the slight anal tearing, slight vaginal tearing, or vaginal bruising were such that they could have resulted from consensual sexual acts, or whether they were necessarily the result of non-consensual sexual acts.
206The complainant’s text messages to and from the third party with whom she says she communicated when she was in the washroom at the accused’s apartment have not been adduced as the complainant erased them. She could not recall this individual’s name.
Conclusion
207Under the third branch of the W.(D.) analysis, even if I do not believe Mr. White-Halliwell, and even if his evidence does not raise a reasonable doubt, I must still consider the whole of the evidence and determine whether I am satisfied beyond a reasonable doubt that the complainant did not consent to anal intercourse.
208As outlined above, the complainant’s evidence is problematic in a number of respects. She has admitted to having a poor memory about many of the events on the evening in question. There are gaps or blanks in her memory. There are many inconsistencies in her evidence, some of which are significant. I have found her evidence that she was intoxicated to the point where she could not move to be highly improbable. The cumulative effect of these frailties in the complainant’s evidence, particularly when there is a lack of supporting physical evidence, raises a reasonable doubt about the reliability of her allegation that she did not consent to anal intercourse with the accused.
209The Crown has failed to discharge its onus of proof beyond a reasonable doubt. Accordingly, I find Mr. White-Halliwell not guilty of the offence charged.
Garton J.
Released: January 25, 2019
COURT FILE NO.: CR-17-70000682-0000
DATE: 20190125
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
AUSTIN WHITE-HALLIWELL
REASONS FOR JUDGMENT
Garton J.
Released: January 25, 2019