ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17-R1857

DATE: 2019/11/05

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

A.A.

Defendant

Caroline Thibault, for the Crown

Michael Spratt, for the Defendant

HEARD AT OTTAWA: October 7-10, 2019

REASONS FOR JUDGMENT

RYAN BELL J. (Orally)

Introduction

[1] A.A. is charged with sexual assault on M.M., contrary to s. 271 of the Criminal Code. A.A. is also charged with attempting to choke M.M. with his hands with the intent to enable or assist himself to commit a sexual assault, contrary to s. 246(a) of the Criminal Code.

[2] A.A. and M.M. first met in September 2015 when they were both students at the University of Ottawa. Shortly after they met, A.A. invited M.M. over to his apartment for a party. On September 25, 2015, the night of the party, M.M. first went with A.R. to a bar in Gatineau, where they celebrated the fact that M.M. had just turned 18. After they had some drinks at the bar, M.M. and A.R. returned to M.M.’s university residence. A.R. fell asleep. A.A. came over and walked M.M. back to his apartment. They had some drinks in his bedroom. They kissed. M.M. alleges that thereafter, A.A. sexually assaulted her and choked her.

[3] The Crown witnesses at trial were M.M., A.R. and Constable Katia Guay. In the early morning hours of September 26, 2015, Constable Guay was dispatched to M.M.’s residence to transport her to the hospital. The sexual assault evidence kit report, a booklet of photographs of M.M. taken on September 26, 2015, a biology report dated January 26, 2017, and a DNA report dated June 7, 2017 were admitted into evidence.

[4] A.A. testified in his own defence. He maintained that M.M. consented to the sexual activity that occurred, and denied that he choked or attempted to choke M.M. There were no other defence witnesses.

The Issues

[5] There are two issues in this case: (i) whether the sexual activity was consensual; and (ii) whether A.A. attempted to choke and render M.M. incapable of resistance, with the intent to enable himself to commit a sexual assault. A.A. does not rely on the defence of mistaken belief in communicated consent.

The Evidence

(i) M.M.’s Evidence

[6] In September 2015, M.M. was a first-year undergraduate student at the University of Ottawa. She lived in a student residence and, at the time, was in a relationship with A.R.

[7] One day during the first few weeks of classes, M.M. and A.A. bumped into one another while M.M. was on her way to class. They exchanged telephone numbers and thereafter, texted and called each other “pretty much every day.” M.M. thought it was the “beginning of a friendship.” A.A. told her that he was “ok” with her being in a relationship with A.R.

[8] On the evening of September 25, 2015, M.M. and A.R. planned to go to a bar in Gatineau to celebrate the fact that M.M. had just turned 18. M.M. testified that she did not remember whether she had anything to drink with A.R. at M.M.’s residence before heading out to the bar. In cross-examination, M.M. was certain that they did not drink wine because “she [A.R.] doesn’t drink wine.”

[9] M.M. and A.R. met a friend at the bar. M.M. testified that she had five drinks while they were there. M.M. did not think that she sent any text messages while they were at the bar; however, in cross-examination, she acknowledged that either she or A.R. sent A.A. a text message from M.M.’s phone in which she described herself as “busted ass drunk.”

[10] When they left the bar, M.M. was “walking crooked”; however, by the time M.M. and A.R. returned to her residence, the effects of the alcohol had worn off a bit. At her residence, M.M. started texting with A.A. who invited her to come over to the party. A.R. was also welcome; however, A.R. did not end up going because she had fallen asleep at M.M.’s place. M.M. did not remember whether she specifically told A.R. that she was invited. M.M. agreed that A.A. did not pressure her to come over alone.

[11] A.A. walked over to M.M.’s place to pick her up. They met outside her residence and they walked back to his apartment together. M.M. described herself at this point as “tipsy” but “ok to walk and talk.” M.M. testified that A.A. had also been drinking and that he was “a bit tipsy.” M.M. did not remember if there was any flirting between them on the way to A.A.’s apartment.

[12] When they arrived at A.A.’s apartment, there were around five people there. A.A. told M.M. to come into his room for some shots, and that they would socialize after. M.M. followed him into his room and he shut the door. They each had three shots. A.A. started kissing her. M.M. testified that she was “ok with it at first” but that she was a bit confused and not sure if she wanted the kiss to happen or not. In cross-examination, M.M. said it would not surprise her if she “kissed him back.”

[13] M.M. testified that after the kiss, A.A. started tugging at her clothes, trying to take them off. When he did not succeed, he started pulling them in all directions to hurt her: “the more I tried to keep them on, the more he would pull.” In cross-examination, M.M. initially stated that she did not remember how she came to be sitting on the bed. She then said that she sat down on the bed on her own. A.A. pushed her to lie down.

[14] Eventually, M.M.’s shorts (under her dress) and underwear came off. She repeatedly told A.A. “no, this is not happening” and “it is not going to happen.” In response, A.A. mocked her and said “of course this is happening, it is happening right now.” M.M. kept trying to move so that he could not penetrate her. At some point, M.M. gave up struggling, thinking it would hurt less. A.A. penetrated her vaginally with his fingers and then with his penis. He tried to anally penetrate her. She testified that several times, A.A. said to her “tell me if I’m hurting you.” But, when he did, he then put a hand on her neck so that she could not answer. M.M. testified that she was never able to speak when A.A. had his hand on her neck. When she did not wipe the sweat off A.A. promptly, A.A. became angry and asked “what the fuck are you waiting for?”

[15] A.A. bit M.M. “really hard.” He bit her on her cheek, her neck, her legs, her chest, her breasts, and on her inner thigh. A.A. slapped her on her face and breasts, using his right hand, an open hand. He increased the rhythm of the slaps to her face and eventually used both hands.

[16] M.M. testified that A.A. spit on her throughout the incident – on her thighs, her vagina, her chest, and her cheek – more times than she could count on her fingers.

[17] A.A. choked her with his hand and bit her on the neck. He wouldn’t leave pressure on her neck for more than two minutes; she was able to breathe, but it was hard to do so and she could not talk. She testified that “[t]hings started going black and fuzzy.” A.A. was “switching it up,” first using one hand, then the other and then both. M.M. initially testified that A.A. choked her three times when she could not answer; later she testified that it was at least five times. Then she clarified that there were four instances where it was “very intense” and M.M. could not move, talk or hear, and she had trouble breathing. For the rest of the times, the pressure was not as intense. In cross-examination, M.M. said that on the occasions when the pressure was most intense, the length of time ranged from thirty seconds to two minutes.

[18] Throughout the incident, A.A. repeatedly put on a condom and then took it off. A.A. eventually ejaculated on M.M.’s back. On cross-examination, M.M. testified that she did not remember A.A. asking where it would be ok for him to ejaculate. After he had ejaculated, A.A. made M.M. wipe the sweat off him. A.A. then told her to get dressed. They left his place “right away” and A.A. walked her back to her residence. On the walk back, M.M. did not talk – she was in shock. A.A. talked as if nothing had happened. They did not kiss on the walk back to her residence. She could not remember if they hugged. In cross-examination, M.M. agreed that they might have engaged in some small talk on the way home. She was in control of her faculties and she remembered that A.A. took off his sweater and gave it to her.

[19] M.M. went into her residence on her own. She woke up A.R. and told her that she had been raped. A.R. then called the police.

[20] In cross-examination, M.M. denied that she used her feet to stimulate A.A.’s penis. She testified that she did not remember if A.A. wanted her to do that and that she did not remember telling A.R. about A.A. wanting her to use her feet to touch his penis.

(ii) A.R.’s Evidence

[21] In September 2015, A.R. was dating M.M. On September 25, 2015, they planned to go to a bar in Gatineau to celebrate M.M.’s birthday. Before they went to Gatineau, M.M. and A.R. drank wine in M.M.’s dorm room. They finished a 1.5 litre bottle of red wine A.R. had bought. Neither A.R. nor M.M. was drunk at that point in the evening.

[22] A.R. testified that when they left the bar, M.M. was still composed; A.R. on the other hand, needed help walking. They walked across the bridge and then caught a bus back to M.M.’s dorm room.

[23] The option of going to A.A.’s party that night was something that had been raised earlier in the day by M.M. A.R. assumed that she, A.R., was included in the invitation. Back at M.M.’s residence, A.R. fell asleep. She told M.M. that she was fine if M.M. wanted to go to the party on her own. A.R. had no concerns that M.M. was too drunk to go to the party.

[24] The next thing A.R. remembered was M.M. coming into the room, crying. M.M. told her that she had been raped by A.A. A.R. testified that M.M. had bruises on her face and arms, and red marks on her neck, cheeks and chin. Within five minutes, A.R. called the police. In the days and weeks following the incident, M.M. disclosed to A.R. what had happened. In cross-examination, A.R. testified that M.M. told her that A.A. had made her use her feet to stimulate his penis.

(iii) A.A.’s Evidence

[25] A.A. met M.M. on campus in September 2015. He was attracted to her and they exchanged contact information. Over the course of the next week or so, they kept in touch through text messages and phone calls.

[26] On September 25, 2015, A.A. texted M.M. to invite her to come over to his apartment. He also extended the invitation to A.R. M.M. called him to ask him to pick her up at her residence. He knew that she had been out at a bar. While she was “tipsy,” M.M. had no difficulty walking. A.A. had been drinking at his apartment. He testified that he had no problems walking or communicating with M.M.

[27] When A.A. arrived at M.M.’s residence they went inside briefly to get M.M.’s phone. On the walk to his apartment, they kissed.

[28] At A.A.’s apartment, M.M. first sat down in a chair. A.A. then offered her something to drink and they went into his room where they each had two shots of tequila with lemon. A.A. then moved to kiss M.M.; however, she said she wanted some gum first. Then, while they were standing, they kissed. A.A. testified that M.M. kissed him back.

[29] They moved to the bed and continued to kiss. M.M. removed some of her clothing and A.A. removed other pieces of her clothing. A.A. removed his own clothing. When A.A. was kissing her on top of her shorts, and A.A. began to pull off her shorts, M.M. said “It’s not going to happen, not now.” A.A. stopped and then they began kissing and touching again and he removed her shorts. He testified that she “was cool with” him removing her shorts.

[30] A.A. testified that things progressed: they were kissing and touching and they were “very intimate.” When A.A. asked M.M. what her “favourite position” was, M.M. responded “fuck me anywhere you want; I just want to please you.” Vaginal penetrative sex occurred. A.A. wore a condom.

[31] A.A. denied spitting on, choking or slapping M.M. He denied trying to anally penetrate her.

[32] A.A. testified that he ejaculated “on her butt.” A.A. used a towel after he ejaculated. He denied asking her to wipe the sweat off his face. He denied that he made M.M. use her feet to stimulate his penis.

[33] A.A. and M.M. then got dressed. A.A. recalled that M.M. asked him whether her hair was ok. On the walk back to M.M.’s residence, M.M. talked about her younger sister and her family. A.A. suggested that they should hang out more. He asked whether she was going to text him and she said she would. M.M. kissed him before she went inside the residence building.

The Legal Framework

[34] A.A. is presumed innocent of the charges against him. He cannot be convicted of those charges unless the Crown proves his guilt beyond a reasonable doubt. It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the Court must be sure that the offence was committed. There is no onus on A.A. to prove anything, least of all his innocence. The burden remains on the Crown.

[35] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or the absence of evidence.

[36] In assessing the credibility and reliability of the testimony of the witnesses, I have taken into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years earlier.

[37] I am mindful of inconsistencies and contradictions in a witness’ testimony. Consistency is an element of truthful testimony; however, I do not expect perfection in a witness’ testimony. Indeed, minor inconsistences are an element of truthful testimony. But significant inconsistencies or contradictions can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.

[38] In R. v. W.(D.) (1991), 1991 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada at para. 28 suggested that in approaching a case where there are competing versions of what happened, the trial judge might well proceed in the following manner:

(i) Consider the testimony of the accused. If the evidence of the accused is believed, he or she must be found not guilty;

(ii) Where the evidence of the accused is not believed but it raises a reasonable doubt as to the accused’s guilt, he or she must be found not guilty; and,

(iii) Even if a reasonable doubt is not raised by the evidence of the accused, the evidence as a whole must be considered and a determination made as to whether the Crown has proved its case beyond a reasonable doubt.

[39] The Supreme Court of Canada has consistently confirmed that these steps “need not be religiously followed or articulated” provided that the burden of proof is clearly placed on the Crown (R. v. C.L.Y., 2008 SCC 2, at para. 7). It is permissible to consider the evidence in any order provided that (i) the burden is never placed on the accused to prove anything, and (ii) the standard of reasonable doubt is applied.

Analysis

[40] In this case, I begin with the evidence of M.M. There were a number of issues with the reliability of M.M.’s testimony.

[41] Overall, I did not find M.M. to be a good historian regarding a number of the details of the events preceding and following the incident. For example, M.M. testified that she did not remember if she had anything to drink with A.R. before going out to the bar. She did not remember if they took a taxi or the bus back to her residence after leaving the bar. She testified that she did not remember texting anyone while they were at the bar; only when she was confronted with a specific message did she agree that it was possible she was so drunk that she might have sent it to A.A. She could offer no explanation why she would have sent it. She said that while there might have been some small talk with A.A. on the way back to her residence, she did not remember the walk itself. None of these details are, in and of themselves, significant. However, given M.M.’s inability to recall the surrounding details, it may be that material details she reported are not necessarily accurate.

[42] I am troubled by the fact that although M.M. could not recall whether she and A.R. had anything to drink in her residence room before going out to the bar in Gatineau, M.M. insisted on cross-examination that they did not drink wine because “A.R. does not drink wine.” This detail in M.M.’s testimony was expressly contradicted by A.R. in her testimony. There appeared to be an effort on the part of M.M. to minimize the amount of alcohol they had consumed before heading out to the bar. A second example: although M.M. initially denied engaging in any texting with A.A. at the bar, on cross-examination she eventually agreed that if she had been really drunk, she might have sent the “busted ass drunk” text to A.A. Again, there appeared to be an effort on M.M.’s part to minimize her level of intoxication.

[43] I am also concerned by M.M.’s attempt to minimize the consensual nature of the kiss in A.A.’s room. On her examination in chief, M.M. testified that she was a “bit confused” regarding the initial kiss but that she “let it be”; only in cross-examination did M.M., reluctantly, acknowledge that “I think I kissed back.”

[44] M.M. first testified that she did not remember how she sat down on the bed. Then she testified that she sat down on the bed “on my own.” She could offer no explanation as to how this detail came to be clarified in her mind. This evidence too causes me concern regarding the reliability of M.M.’s testimony.

[45] There were several inconsistencies between M.M.’s testimony at trial and her testimony at the preliminary inquiry. These inconsistencies are significant because they arise in M.M.’s account of the very conduct that underlies the offences with which A.A. is charged.

[46] The first such inconsistency relates to M.M.’s testimony regarding the manner in which A.A. choked her. At trial, M.M. was very clear that A.A. choked her, first with one hand, then with the other, then with both hands. At the preliminary inquiry, she testified that A.A. choked her with only one hand, probably the right hand. When asked to explain the contradiction, she testified that “simply over the years some things I remember more and some things I remember less.”

[47] Second, at trial, M.M. testified that A.A. choked her four times when she was having trouble breathing (after first stating that A.A. choked her three times and then stating it was five times). At the preliminary inquiry, she testified that there were three such occasions. M.M. was unable to provide an explanation for the contradiction between her prior testimony and her testimony at trial.

[48] Third, at trial, M.M. testified in her examination in chief that each such occasion lasted two minutes. In cross-examination, M.M. provided a range: thirty seconds to two minutes. M.M. could not explain why she did not give a range when she was asked in her examination in chief. At the preliminary inquiry, M.M. did not provide a range and gave a time of thirty seconds.

[49] The fourth significant inconsistency involved what M.M. was wearing when A.A. penetrated her. At trial, M.M. testified that when A.A. penetrated her, her shorts and underwear were off. At the preliminary inquiry, M.M. stated that she was still wearing her bra and underwear when he penetrated her.

[50] In light of these significant inconsistencies, I am simply unable to determine with any confidence what has been accurately remembered by M.M. and what has not, concerning the incident on the night of September 25-26, 2015.

[51] With respect to the spitting, M.M. was precise in her testimony at trial about where A.A. spit on her and the number of times: “more times than she had fingers.” When she was asked in cross-examination why she did not tell the police about the spitting, she responded, “I wasn’t really thinking about it.” I do not find M.M.’s explanation credible given her testimony at trial.

[52] Finally, I do not accept M.M.’s claim that she did not remember telling A.R. that A.A. wanted her to use her feet to touch his penis. A.R. testified that M.M. did disclose this information to her; she noted it because it was something that M.M. was “opposed to.” There is no basis to conclude that A.R. understood the disclosure she received from M.M. incorrectly and I do not do so. I do not believe this aspect of M.M.’s testimony.

[53] Based on the totality of these problems, I conclude that it would be unsafe to convict A.A. based on M.M.’s testimony; I simply cannot be confident about what did or did not happen on the night of September 25-26, 2015. The Crown has failed to satisfy me, beyond a reasonable doubt, that M.M. did not consent to the sexual activity that occurred. The Crown has also failed to satisfy me, beyond a reasonable doubt, that A.A. endeavoured to choke M.M.

Conclusion

[54] For these reasons, I find A.A. not guilty of counts one and two on the indictment. Acquittals will be entered accordingly.

Madam Justice Robyn M. Ryan Bell

Released: November 5, 2019

COURT FILE NO.: 17-R1857

DATE: 2019/11/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

A.A.

Defendant

REASONS FOR JUDGMENT

Justice Ryan Bell

Released: November 5, 2019