COURT FILE NO.: CR-17-16-00

DATE: 2019 11 21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Gursharn. Gill, for the Crown

• and -

BENJAMIN ABITOL-SALAZAR

Marco Sciarra, for the Defendant

HEARD: June 10, 2019 at Brampton

REASONS FOR JUDGMENT

SHAW J.

INTRODUCTION

1Mr. Abitol-Salazar is charged with a single count of sexual assault on T.H., which is alleged to have occurred on or about November 20, 2015, contrary to s. 271 of the Criminal Code of Canada.

2On November 19, 2015, T.H. was invited by her best friend, J.B., to attend her birthday party at her home in Brampton, Ontario. She and Ms. J.B. had been friends since Grade 9. The invitation was by way of a text message on November 12, 2015. At the time, T.H. was a 21-year-old college student attending school in Lindsay, Ontario.

3T.H. drove to Ms. J.B.’s apartment in Brampton, arriving around 6:30 p.m. When she arrived, she met Mr. Abitol-Salazar, who was Ms. J.B.’s boyfriend. It was the first time she met Mr. Abitol-Salazar. During the course of the evening, other people arrived for the party. T.H., Ms. J.B. and Mr. Abitol-Salazar all consumed alcohol at the party.

4According to T.H., as a result of her consumption of alcohol, she passed out in Ms. J.B.’s bedroom, fully clothed. She woke at some point feeling a pain in the area of her cervix. She was laying on her stomach with her head hanging over the side of the bed. Upon feeling the pain, she lifted her head and looked over her shoulder. She saw Mr. Abitol-Salazar who was near her feet. She then passed out again. The following morning, she woke up without her pants and underwear. She went to the washroom and, when she wiped herself, she found a white creamy substance on her vagina, which she identified as semen. Although T.H. had no recollection of Mr. Abitol-Salazar penetrating her, she believed it was his semen.

5The Crown called only one witness, the complainant. The accused did not give evidence. Accordingly, the issue is whether, based on T.H.’s evidence, the Crown has proven the elements of the offence of sexual assault beyond a reasonable doubt.

6As in many sexual assault cases, credibility and reliability determinations are critical to the outcome of this case. The complainant’s testimony is the case for the Crown. In order to convict, I must be satisfied beyond a reasonable doubt that T.H. is credible and that her evidence is reliable and of such persuasive force that it excludes any reasonable doubt : R. v. C.B., 2019 ONCA 380 at para. 144.

Review of the Evidence

a) The Birthday Party

7T.H. testified that, between November 12, 2015 and November 19, 2015, she exchanged a number of text messages with Ms. J.B. about her plans to travel to Brampton. T.H. left Lindsay around 4:40 p.m. and drove to Brampton. She arrived at Ms. J.B.’s apartment at approximately 6:30 p.m. On arrival, she met Mr. Abitol-Salazar, whom she had never met or spoken with prior to November 19, 2015. Only Ms. J.B. and Mr. Abitol-Salazar were present when she arrived. T.H. described Mr. Abitol-Salazar as Caucasian and wearing a black short-sleeve t-shirt. She said he had shorter hair and his arms were covered in tattoos. She also said he had a tattoo on his Adam’s apple which depicted an eyeball.

8T.H. described the apartment as tiny. There were a set of exterior steps leading down to the entrance of the basement apartment. She testified that the living room was to the right of the entry and it was open to the kitchen. A hallway to the left of the entry led to the bathroom. The only bedroom was located at the back, behind the kitchen.

9Shortly after arriving, Ms. J.B., Mr. Abitol-Salazar and T.H. left to get some party supplies. They went to a smoke shop to buy a long tube for smoking tobacco and then to a sex shop. T.H. testified in chief that she did not know why they went to a sex shop but Ms. J.B. and Mr. Abitol-Salazar wanted to go there and they purchased an item.

10They arrived back at the apartment and watched television. They did not drink any alcohol. At approximately 9:00 p.m., T.H. and Ms. J.B. left the apartment to buy some beer, along with limes and lemons, as the other guests were arriving at 10:00 p.m. Ms. J.B. bought a case of beer. T.H. testified that she brought her own drinks with her, including six Angry Orchard ciders and a six pack of Guinness beer.

11During cross-examination she testified that, while at the beer store, Ms. J.B. told her that she had an open relationship with Mr. Abitol-Salazar. She also testified during cross-examination that Ms. J.B. told her that he had slept with over 250 women but she was ok with this and that he had tested negative for sexually transmitted diseases. T.H. did not agree with the suggestion that this type of discussion was odd, but described it as girl-talk between herself and Ms. J.B..

12She was then questioned about a statement she gave to Peel Regional Police (“PRP”) on November 25, 2015. In that statement, she told the police that she knew Ms. J.B. had done a threesome before but did not know that she and Mr. Abitol-Salazar were in an open relationship. She then agreed, on further cross-examination, that the first time she was aware of Ms. J.B. and Mr. Abitol-Salazar’s open relationship was through text messages she exchanged with Ms. J.B. between November 20 and 23, 2015, after the alleged sexual assault.

13Ms. J.B. and T.H. arrived back from the Beer Store around 9:30 p.m. T.H. testified that, at 10:00 p.m., Mr. Abitol-Salazar poured Ms. J.B. her first drink. T.H. testified that she had her first drink, a cider, at 11:00 p.m. The other people started to arrive between 10:30 and 11:00 p.m. The first guest to arrive was a male who she described as chubbier with darker skin and short hair. She had never met him before. The second guest was a friend who went by the name of Kyle, whom she had also never met before. She described him as being skinnier with longer hair, paler and a little shorter. She said that both these individuals were black. Ms. J.B.’s girlfriends arrived at 11:00 p.m.

14T.H. testified that between approximately 10:20 and 11:30 p.m. she had three to four tequila shots and two additional ciders. She did not know how much Ms. J.B. or Mr. Abitol-Salazar drank. She testified that she had a sandwich at 6:20 p.m. and a slice of pizza at some point prior to 11:20 p.m.

15After drinking the tequila and ciders, she funneled a beer. She explained that a funnel is a tube or a hose into which a full beer is poured. She testified that the beer was the last drink she had but she did not know what time that occurred.

16On November 20, 2015, at T.H.’s request, Ms. J.B. texted her some photographs from the party, after T.H. arrived back home in Lindsay. Ms. J.B. identified herself in the photographs. In one of the photographs she is shown kneeling on the floor in the kitchen with the funnel in her mouth. She identified Mr. Abitol-Salazar as the person standing in front of her holding the other end of the funnel.

17After she funnelled the beer, the next thing T.H. remembered was people standing in the kitchen. Kyle was sitting in the livingroom. She started to feel queasy and so she sat on the couch with Kyle. She also testified that the girls were running everywhere. After sitting on the couch for a few minutes she felt like she had to “puke” so she tried to go to the washroom, but the girls were “hotboxing” in the washroom, which she explained meant they were smoking marijuana. They asked her to join them but she said no. She testified that she then ran outside to her car. Her evidence was that she vomited outside the car door, got into her car and texted J.B. asking her to come outside because she was not feeling “too good.” She then fell asleep in the car.

18T.H. testified that the next thing she remembered was someone opening the driver’s side door. She recalls hearing a male and a female voice. Her evidence was that she woke up when someone grabbed her left bicep to help her get out of her car. She testified that she recognized Mr. Abitol-Salazar as the person who grabbed her left arm and she saw Ms. J.B. standing right behind him. Her evidence was that they helped guide her into the house as she was “out of it” and too drunk to walk.

19She identified a series of texts that she sent to Ms. J.B. on November 20, 2015, while she was the car. The texts were sent at the following times and read:

1:11 am: Come outside

1:12 am: I need some fresh air

1:15 am: I’m just sitting outside enjoin the night lol

1:16 am: Where r ya?

20During cross-examination, T.H. initially denied that she needed to be escorted from the car into the apartment. She testified that she was quite fine. She then agreed that Mr. Abitol-Salazar and Ms. J.B. had to escort her, as she was so drunk.

21T.H. agreed during cross-examination that despite her evidence of her level of impairment, she was able to send the four text messages between 1:11 a.m. and 1:16 a.m.

22T.H. testified that Mr. Abitol-Salazar and Ms. J.B. helped her into the bedroom in the apartment. She testified that as they walked her to the bedroom, someone got her a bucket because she was dry heaving. She testified that she was lying on the bed for a couple of minutes and then passed out lying face down on the bed, on top of the covers, with her head hanging over the side of the bed. Before she passed out, she also recalled Ms. J.B. coming in to the bed and leaning over her to use the bucket because she was also sick.

23T.H. testified that, when she passed out on the bed, she was wearing black Spandex pants, a pink hoodie, a bra and underwear.

24Before she passed out, she did not recall anyone else on the bed other than herself and Ms. J.B.. She was shown a black and white photograph that she received via text from Ms. J.B. after the party. The photograph shows a number of females on the bed. T.H. recognized herself in the photograph. She is shown lying on her stomach with her head over the side of the bed. She identified Ms. J.B. in the photograph as the person lying on her back with her arm held by another female. There are three other females shown in the photograph on the bed but T.H. did not know them. They were Ms. J.B.’s friends whom she met that evening.

b) The Alleged Assault

25According to T.H., the next thing she remembered was waking up to a sharp pain or pressure inside her cervix area. She lifted her head off the pillow, turned her head slightly and looked back over her shoulder and saw someone wearing a black shirt with paler skin and a tattoo of on eyeball on his neck sitting at her feet. She testified that she passed out again after she looked back. She testified that she woke up because of the sharp pain in her cervix but she was in a daze and was too drunk to move. She also described what she saw as a silhouette that she did not initially recognize. She testified that everything was a blur. She described it as a quick glance. She testified that she was disoriented. She testified that she recognized the black shirt and tattoo and pieced it together when she woke up at 9:00 a.m. the following morning and her pants and underwear were off and she found semen on her vagina.

26She also testified that when she looked back, the person she saw had a chubbier face with no hair compared to the other guys who had been at the party. She testified that Kyle was the only other male that slept over after the party and she described him as a shorter black man with long hair. She described the silhouette she saw as having stubby or buzzed hair. She recognized the person at her feet to be Mr. Abitol-Salazar. She testified that she did not know if he was sitting at her feet when she looked back. She also testified that she assumed he was kneeling. She described it as a “quick wake” and then she was “out again.”

27When she looked over her shoulder, she testified that she only saw the upper half of Mr. Abitol-Salazar which included his face, hair, black shirt and tattoo. She testified that she turned her head and saw Mr. Abitol-Salazar within seconds after feeling the pain in her cervix. She testified that the pain in her cervix lasted a second and then she was “out again.” She did not recall seeing anyone other than Mr. Abitol-Salazar and did not know where Ms. J.B. was at the time. She did not recall if she was wearing all of her clothes when she looked over her shoulder. She testified that when she turned her head, she made eye contact with Mr. Abitol-Salazar for only a “split second.” She did not recall seeing what his arms were doing but she said he was at her feet.

28During cross-examination, she testified that the bedroom was dark and the lights off when she felt the pain in her cervix and looked over her shoulder to see Mr. Abitol-Salazar.

29T.H.’s evidence was that she drank less that evening than she would normally drink for a birthday celebration. She testified that she had funnelled before and that she had drank more in the past and had never blacked out. T.H.’s evidence was that she believed that she may have been given a drug that evening.

30T.H. testified that when she woke and felt the sharp pain and saw Mr. Abitol-Salazar, she did not consent to him touching her in a sexual manner.

c) The Events Following the Alleged Assault

31T.H. testified that when she woke at 9 a.m. on November 20, 2015, she was lying in the same position on the bed as when she passed out. She testified that she knew it was 9:00 a.m. as she saw the time on the stove clock. She described feeling disoriented. She did not have her pants or underwear on and saw them at the foot of the bed. Her evidence was she had to get out of bed to “puke” so she had to find her pants. She testified that she had planned to go to school that day but she was too intoxicated to drive. After going to the washroom, she went back to bed and “passed out” again until 1:00 or 2:00 p.m. Her evidence was that Ms. J.B. was passed out on the bed beside her when she woke at 9:00 a.m.

32She testified that when she went to the washroom at 9:00 a.m., she had to walk through the kitchen and she saw the accused and Kyle sleeping on the couch in the livingroom.

33In the washroom, she felt nauseous and she was dry heaving as she sat on the toilet. When she wiped herself, she saw a wet, white, and creamy residue on a tissue that was on the outside of her vagina. She testified that it did not look like her own bodily fluid, which is clear. She identified it as semen.

34Her evidence was that she did not understand why she did not have her pants or underwear on when she woke at 9 a.m. She testified that she was still intoxicated, did not feel well, was confused and she was trying to piece together what happened.

35She also testified that she could not find her underwear when she first found her pants and only found them after she returned later that day, after having gone to a restaurant and pharmacy with Ms. J.B. and Mr. Abitol-Salazar. She testified that she found them where she had found her pants but did not put them on again. Instead, she put them in her bag and left.

36T.H. testified that when she woke again at 1:00 p.m., Ms. J.B. started rolling around on the bed and they got up. Mr. Abitol-Salazar and Kyle were in the livingroom. After talking for about an hour, she and Mr. Abitol-Salazar and Ms. J.B. decided to go to Montana’s. Her evidence was that she was still confused about what had happened. She testified that she could still not drive and wanted a plan B pill, so she went with them to Montana’s and asked them to stop at Shopper’s. She testified that she made up a story about her friend needing the Plan B pill as she did not want Ms. J.B. to think she needed it because her boyfriend had had sex with her without her consent.

37They returned to the apartment after eating and she took the pill. She found her underwear on the floor in the bedroom. She then left to drive back to Lindsay at approximately 3:30 p.m. That same evening, she drove to Ottawa with a friend for a farming event.

38During cross-examination, T.H. was asked about the statement she gave to PRP. In that statement, she initially told the police that she did not remember if she put her pants on when she woke up at 9 a.m. or if she put them on at 2 p.m. She also told the police that when she woke at 2 p.m., she threw up twice. Later in that same statement she told the police that, when she woke up the first time, she was looking for her pants. Once she found them, she put them on and then went to the bathroom because she did not feel well. She went back to bed. She then said she was not sure whether she went to the bathroom or not or if she put her pants on, but that is what she thought happened, although she remembered falling asleep again until 2 p.m.

39T.H.’s evidence during cross-examination was that she threw up at both 9 a.m. and 2 p.m. and that it was a mixture of dry heaving and “puking.”

40On re-examination, her evidence was that she put her pants on at 9 a.m. She explained that when she gave her statement to the police, she was trying to remember the events and was trying to be as accurate as possible. She explained that she was thinking out loud when she talking to the police and trying to replay everything that happened.

41T.H. testified that, throughout the day, the accused and Ms. J.B. made fun of her for sleeping without any pants on. She testified that Ms. J.B. was not awake at 9:00 a.m. when she woke up and the accused was not in the bedroom, so she was confused because she did not know when they both saw her without her pants on. She testified that when they were making fun of her, she did not know what to say and did not say anything as she was still confused.

d) The Text Messages

42T.H. was shown a series of text messages exchanged between herself and Ms. J.B. commencing at 5:42 p.m. on November 20, 2015, and ending on November 23, 2015. As Ms. J.B. was not called by the Crown as a witness, the texts from her are not admissible for the truth of their contents.

43In the first text from T.H. to Ms. J.B. at 5:42 p.m., she asked Ms. J.B. to send her photographs. T.H. testified that, while they were eating at Montana’s, Ms. J.B. told her that she had photographs from the evening. T.H. wanted to see them to help her piece together the events of the night, so Ms. J.B. sent her seven photographs. At 8:29 p.m., T.H. texted Ms. J.B. saying “haha thanks girl! What a crazy night loved it miss you.” TH testified that she sent that text to Ms. J.B. as she wanted to piece together the night and she felt confused and did not know how to tell her best friend that her boyfriend had had non-consensual sex with her. Her evidence was that she did not know what Ms. J.B. knew and she was trying to get information from her.

44On Sunday November 22, at 12:53 a.m., T.H. replied to a text from Ms. J.B. who had texted her at 8:27 p.m. the night before asking if she was busy. T.H. responded; “heyy nice glad you are you are having a good time and nope I’m not what’s up.” At 4:11 p.m., on November 22, Ms. J.B. texted her again asking if she remembered anything that happened that night. T.H. responded at 4:13 p.m. saying “…And I do and I don’t. U alone atm?”. There was a text at 4:14 p.m. from Ms. J.B. saying “Hahaha yeah moneeey! & yeah what’s up girl!...” At 4:15 p.m. T.H. texted Ms. J.B. and said “K well I don’t remember much do you?? What do you think happened??”

45T.H.’s evidence was that that she sent that text as she was wondering if Ms. J.B. was going to “own up” or if she was going to have to tell Ms. J.B. what happened. At 4:18 p.m., in a text, Ms. J.B. asked “…What do you remember??” T.H. replied at 4:19 p.m. saying “hahaha omg me too!!! I remember us puking together one over top of the other:p” At 4:30 p.m., Ms. J.B. texted “Lmao you too?! What else?? lol yeah it was funny.” At 4:43 pm., T.H. responded “ Lol ya it was funny. Um I remember going to my car wanting to sleep going to the bathroom and the girls hotboxing the bathroom. And J.B. I need to talk to u about stuff that went on…there’s no easy way to say it but ur bf fucked me while I was passed out…why else was my pants off…??”

46T.H. testified that she sent this text, as she thought Ms. J.B. was beating around the bush. When she sent the text, she did not know if Ms. J.B. knew what happened but she felt that she had to tell her because Ms. J.B. needed to know that her boyfriend cheated on her.

47At 4:34 p.m., Ms. J.B. texted T.H. and told her that she knew the whole time and that she and Mr. Abitol-Salazar had threesomes before.. At 4:36 p.m., T.H responded and said; “I was guan tell you sooner just didn’t know how And I have no idea I was knocked out for the whole thing…tbh. I was the same as you Frickin passed the fuck out. We were dead to the world.”

48T.H. testified that she was shocked and confused that Ms. J.B. knew what had happened to her when she texted Ms. J.B. at 4:36 p.m., T.H.’s evidence was that she was trying to convey to Ms. J.B. that she was angry.

49At 4:40 p.m., T.H. texted Ms. J.B. and said; “Lol that’s ok I’m totally fine!!! Glad u guys r ok too. Ya we were toast. Those drinks killed us all :p ya I’d love to come back down!!! I missed you girl :)” T.H. testified that, when she sent this text, she was still confused but she was trying to act as if nothing happened because she did not know what to do. Her evidence was that Ms. J.B. was her best friend and she did not know if she should “shrug off” what had happened as she felt that Ms. J.B. had betrayed her.

50In a text from Ms. J.B. at 4:38 p.m., she told T.H. that she and Mr. Abitol-Salazar wanted to have a threesome with T.H. that night but she couldn’t wake up.

51When asked by the Crown if she ever had a discussion with Ms. J.B. and Mr Abitol-Salazar about having a threesome on November 19 or 20, 2015, T.H. answered “never, no.”

52During cross-examination, she testified that the first time Ms. J.B. ever discussed a threesome involving her was in the text messages she sent after the alleged assault. T.H. was then shown text messages which she had exchanged with Ms. J.B. on June 23 and 24, 2015. (In a prior s. 276 decision, I found that T.H. could be questioned about these text messages solely as it relates to issues of credibility.)

53T.H. initially testified that she recalled the text messages. The text messages were then put to her. The text messages read as follows:

Date and Time

Sender/Recipient

Message

– 10:23 p.m.

Ms. J.B. to T.H.

Hey so super super random but you should send me a nude

June 23, 2015: – 4:49 a.m.

– 2:14 p.m.

– 2:15 p.m.

– 2:24 p.m.

– 2:37 p.m.

– 2:48 p.m.

T.H. to Ms. J.B.

Haha oh my!! K well that requires me takin one lmfao :) I’m soo curious to ask why!?!?! Lol

Ms. J.B. to T.H.

Do it and I’ll tell you why

T.H. to Ms. J.B.

Omg well I gota take one tonight then. Can I know please haha I’m soo curious!!

T.H. to Ms. J.B.

HAHA please tell me this is interesting to know

Ms. J.B. to T.H.

I promise I will when you send it

T.H. to Ms. J.B.

lmao aww can I know I’ll send one either way lmao

June 24, 2015: – 3:50 p.m.

– 11:36 p.m.

Ms. J.B. to T.H.

Well I wanted to know if you’d be down to have a 3 some! :)

T.H. to Ms. J.B.

Haha aww well I’m honoured lmfao and ya I’ve done before with 2 inexperienced ppl but one guy wanted it so I did it lol it was actually a girl and a guy

54When these text messages were read to T.H., she testified that she did not recall this exchange, but if she had, she would have given the messages to PRP, along with the other texts she provided. She agreed that, based on these text messages, Ms. J.B. had approached her about a threesome in the past but she did not recall it. She confirmed again during cross-examination that the text message Ms. J.B. sent her on November 22, 2015, was the first time she recalled having any discussion with Ms. J.B. about a threesome.

55T.H. was then asked about her statement to PRP, when she told the officer that “they wanted to do a threesome with me one time but I was not buying it right.” She told the officer they mentioned it “but it was like a long time ago… like months ago.. But I kyboshed that like immediately.” She testified on cross-examination that she remembered giving that answer to the police officer but explained that was referring to the texts she received from Ms. J.B. on Sunday, November 22, 2015. When it was pointed out to her that she told the police that she said it had occurred a long time ago, she then testified that this discussion had occurred during a phone call or maybe during a face-to-face discussion with Ms. J.B. but she could not recall and had forgotten and had “brushed it off.” Again, she denied having any recollection of the June 2015 text exchange with Ms. J.B..

56As part of a text at 4:48 p.m. on November 22, 2015, T.H. told Ms. J.B. “but I’m soo down to come party with you again.” She denied that she meant it. Her evidence was that she was confused when she was exchanging these texts with Ms. J.B. as she had been her friend for 9 years and was also looking for more information as she did not know if she had been drugged that evening.

57There was an exchange of emails between 5:27 p.m. and 5:31 p.m. on November 22, 2015 and T.H. told Ms. J.B. that it was good seeing her again and that she was excited for school to be done but that she loved the course she was in. T.H. testified that, at that point, she did not know how to handle Ms. J.B.. She was trying to be polite but felt that Ms. Bruton had betrayed her and her body.

58The next text was at 10:27 p.m. on November 22, 2015 when T.H. texted Ms. J.B. “just curious, did we just drink a lot or did I/we get drugged in it too??” According to T.H. she asked this because the amount she drank that evening was less than she would normally drink at that type of party. That was the last text she sent to Ms. J.B..

59During cross-examination, it was put to T.H. that she did not have any recollection of the events of the evening from the time she funnelled a beer until she woke at 9 a.m. in the morning. She answered that she had a “split second” recollection and then passed out again.

60She also agreed with the suggestion that she had no recollection so she had to ask Ms. J.B. to send her photographs from the party. She also agreed with the suggestion that she looked at the photographs to stimulate her recollection of the events.

61She testified during cross-examination that, when she was texting Ms. J.B., she was not being truthful as she trying to figure out what happened to her. She agreed with the suggestion that the part she relied on most was Ms. J.B. telling her that she was aware that T.H. and Mr. Abitol-Salazar had intercourse. Her evidence was that Ms. J.B. confirmed for her what happened. She agreed with the suggestion put to her on cross-examination that she relied heavily on what Ms. J.B. told her to help her piece together what had happened to her.

e) Medical Attention

62T.H. testified that she went to the hospital in Lindsay with a friend around 9:00 or 10:00 p.m., on Sunday November 22, and stayed until 2:00 or 3:00 a.m. She testified that she told the person in the emergency department that she had been raped and the person responded by saying “what do you want us to do about that?” Her evidence was that she had to insist that the hospital do something to help her. She testified that the hospital staff only asked her for a urine sample but she had gone to the hospital because she needed to know she was ok and whether she had a disease. She did not go sooner as she was in Ottawa for the weekend and she was trying to forget. She knew something happened but she did not know what to do. She testified that she told her mother what happened on Sunday afternoon.

63On cross-examination she did not agree with the suggestion that she did not tell the Lindsay Hospital that she had been sexually assaulted. When asked if she only complained about being given a date rape drug, she said that she told the hospital she was sexually assaulted but they would not help her. She was then shown the emergency department record from the hospital which states, “patient believes she might have been given the date rape drug two days ago.” There was no reference in the emergency department record of any report of T.H. being sexually assaulted. The presenting complaint was described as “substance misuse.”

64When shown the hospital record, T.H.’s response was that “they were pathetic” and all they did was a drug test. She was adamant that the Lindsay Hospital would not help her. She insisted that she told the hospital that she had been sexually assaulted and she tried to give them as much information but they did not put it in their records.

65The following Monday, she called her doctor because the hospital did not help her. She saw her doctor on Tuesday and, when she reported what happened, her family doctor called the police. She then went to the hospital in Peterborough and they conducted a rape kit. She testified that she had washed her pants and underwear before she went to the hospital.

66She agreed on cross-examination that she reported to the doctor in Peterborough that her vision was blurry but she could see Mr. Abitol-Salazar on top of her with an eyeball tattoo on his neck. She also agreed that she told her mother he was on top of her. She then said she had, “messed up on my words.”

67During cross-examination, T.H. was shown a photograph which appeared to show herself, Mr. Abitol-Salazar and Ms. J.B. all lying down together. Mr. Abitol-Salazar had his arm around Ms. J.B. and T.H. was smiling. While T.H. recognized herself in the photograph, she did not recall when it was taken. She testified it could have been taken when she first arrived at the apartment.

Positions of the parties

The Crown’s Position

68It is the Crown’s position that the complainant was touched by the accused, the touching was intentional and was of a sexual nature. The Crown’s position is that the accused was intoxicated to the point that she was unconscious and that she, therefore, lacked the capacity to consent. In the moment that she woke, the Crown asserts that she did not consent to the sexual touching.

69The Crown’s position is that T.H. presented as credible and reliable, and that her evidence was clear, cogent and careful. The Crown says that T.H. was careful to not exaggerate and was forthcoming when she was unsure or could not remember details. The Crown also said there were no significant contradictions or inconsistencies in her evidence, or where any such inconsistencies existed, they were memory lapses in relation to minor details about matters that far pre-dated the events of November 19 and 20, 2015.

70The Crown’s position is that, based on the credibility and reliability of the complainant, her evidence establishes its case beyond a reasonable doubt.

Defence position

71It is the position of the defence that the complainant was neither reliable nor credible and that her evidence fails to establish proof beyond a reasonable doubt that the accused touched her sexually. Furthermore, the defence’s position is that, if sexual touching did occur, I must be left with a reasonable doubt as to whether the complainant consented or lacked the capacity to consent due to her level of intoxication.

Applicable Legal Principles

72Mr. Abitol-Salazar is presumed innocent. The Crown must prove beyond a reasonable doubt that Mr. Abitol-Salazar is guilty of sexual assault. There is no onus on the accused to prove anything. The standard of proof beyond a reasonable doubt is an exacting one; it is more than probable or likely guilt. Proof beyond a reasonable doubt falls much closer to absolute certainty then it does to prove on a balance of probabilities. Ultimately, I may find the accused guilty only if I am sure he committed the alleged offence.

73Only the complainant testified about what occurred on November 19 and 20, 2015. I must consider the evidence as a whole in determining whether the Crown has proven the charge beyond a reasonable doubt. This turns on an assessment of the credibility and reliability of the evidence of the complainant. Those concepts are different. Credibility relates to sincerity and whether a witness believes what he or she testifies to. Reliability relates to whether what the witness says is factually accurate.

74I am mindful of some additional fundamental legal principles that inform my analysis of the issues in the case. Fristly, I must avoid any assumptions and stereotypes as to how victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6, 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124, 372 C.C.C. (3d) 301. It is important not to make credibility findings on the basis of my own understanding of “common sense and logic,” as this may mask improper reliance on prejudicial generalizations.

75Secondly, while demeanor evidence may be a factor in assessing the credibility of the witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 at para. 41; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726 at para. 22. Undue weight must not be given to demeanor because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534 at para. 44.

76The credibility of T.H. is paramount in this case. Some of the factors I can consider in assessing credibility include the following:

a) Demeanour;

b) Does the evidence make sense;

c) Does the evidence have an internal consistency and logical flow;

d) Are there any prior inconsistencies;

e) Is there independent confirmatory or contradictory evidence;

f) Is there an interest in the outcome and a motive to lie:

R. v. Z.K., 2018 ONSC 558, at para. 25.

77No one single factor is determinative. I have considered all factors when assessing T.H.’s credibility.

78In R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para. 25, the Court set out the elements of the actus reus of sexual assault:

The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with resepct to the sexual nature of his or her behaviour.

Analysis

79In the absence of any other evidence, the credibility and reliability of the complainant must be such that proof of guilt is beyond a reasonable doubt. In the absence of any other evidence, inconsistencies and contradictions with other evidence becomes the focus.

80While T.H. believes that she was sexually assaulted by Mr. Abitol-Salazar, and that may have occurred, I am left with a reasonable doubt based on concerns I have regarding her reliability and credibility as a witness.

81While there were a number of inconsistencies in T.H.’s evidence, many of those inconsistencies did not cause me any concern regarding her credibility or reliability as a witness. There were aspects of her evidence that were detailed, clear and believable. For example, she testified that, on November 20, 2015, she did not tell Ms. J.B. about why she needed to get the Plan B pill. She agreed that she made up an elaborate story about her friend needing it. I accept T.H.’s evidence that, on November 20, 2015, she was confused and – believing that her best friends’ boyfriend may had sexually assaulted her – she would not want to tell Ms. J.B. why she wanted to take the pill. There is a logical consistency to that evidence.

82The defence questions why T.H. did not keep the tissue she used to wipe herself, on which she saw what she concluded to be semen in order to be forensically tested. The defence also questions why she washed the pants and underwear she was wearing, thereby making them unavailable for testing. A person who is still feeling the effects of alcohol, who does not fully recall the events of the previous evening and who is confused about what occurred, is not going to be thinking in a strategic way to preserve evidence for possible use for forensic analysis and testing. T.H.’s behaviour is not indicative of a deliberate plot or plan to conceal evidence. Rather, her behaviour is consistent with someone who had consumed an excessive amount of alcohol and was unsure about what had transpired.

83She was also questioned about inconsistencies regarding whether she put her pants on at 9 a.m. or 2 p.m. the following day and whether she vomited at 9 a.m. or 2 p.m. She was also questioned about inconsistencies in her evidence about when Ms. J.B. would have seen her without wearing her pants. T.H.’s recollection of exactly what occurred, and at what time the following morning, was imperfect but that is not surprising as she was testifying about events that occurred five years ago. I accept her evidence that she was still feeling the effects of alcohol. I am not troubled that her evidence was inconsistent in these areas.

84T.H. was questioned about how she felt the day after the alleged assault. On cross-examination, she agreed that she was distraught and upset and felt awkward with Ms. J.B. and Mr. Abitol-Salazar and did not leave. She was then shown a photograph of herself and Ms. J.B. and Mr. Abitol-Salazar smiling and lying close to each other. A person who has been, or believes she has been sexually assaulted, does not act or behave in any fixed or set manner. The fact that she did not leave the apartment immediately when she woke up and went out for lunch with a person she believed may have sexually assaulted her does not render her evidence any less credible or reliable. Likewise, taking a photograph the following day showing herself smiling with her alleged assailant does not make her any less credible or reliable as a witness.

85On re-examination, T.H. testified that some of the inconsistencies in her statement to the police were the result of her trying to talk through and remember the events. That indicates, however, and is consistent with, T.H.’s own evidence that she was confused and unsure about what happened. This leads me to have some concerns regarding her reliability as a witness as she was still trying to sort through what had happened on November 19-20, 2015, five days later when she gave her statement to PRP.

86Furthermore, she agreed during cross-examination that she had to ask for photographs from Ms. J.B. to try to piece together the events of November 19-20, 2015. She also testified that she had to seek out information from Ms. J.B. about the evening. Her lack of an independent recollection and reliance on photographs and information from Ms. J.B. also causes me to have concern regarding her reliability as a witness and question to what extent her recollection may have been shaped or influenced by what Ms. J.B. told her both prior to and subsequent to the alleged sexual assault.

87T.H. was cross-examined extensively about the text messages she exchanged with Ms. J.B. following the alleged assaults. T.H. testified that she was confused and upset when she was exchanging these texts. While a reading of those texts do not appear to be consistent with T.H.’s emotions and state of mind, as she described during her examination in chief, I accept her evidence that she trying to obtain information from Ms. J.B. to help her “piece together” the events of the prior evening. I also find that what or how someone communicates in a written text message may not accurately reflect that person’s true intention, meaning or feeling. It is credible that T.H. may have been texting Ms. J.B. in a positive fashion about how much she enjoyed the evening but that her feelings may have been quite different from the content of those text messages. For the same reason, I do not find the contents of the texts T.H. sent to Ms. J.B. while she was in her car on November 20, 2015, before she fell asleep, to be inconsistent with her evidence that she texted Ms. J.B. saying she did not feel well.

88My greatest area of concern regarding her reliability stems from her evidence identifying Mr. Abitol-Salazar as the person who allegedly sexually assaulted her. My concerns are based on her level of intoxication and the very brief period of time that she allegedly saw Mr. Abitol-Salazar in an, admittedly, dark room.

89Courts have long recognized the inherent frailties in eyewitness identification due to the unreliability of human observations and recollections. Many factors can affect the reliability of eyewitness identification. Mistakes regarding identification have led to miscarriages of justice because people have been mistakenly identified by honest witnesses, who are trying their best to testify about who they saw. In cases involving such identification evidence, jurors are instructed about the risks of error inherent in that type of evidence: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 108-110 and R. v. Hibbert, 2002 SCC 39, 2 S.C.R. 445 at para. 51.

90In this case, there are three very specific frailties in T.H.’s identification evidence. Those specific frailties are as follows: 1) the state of her sobriety; 2) the lack of any lighting in the bedroom (it was dark) and; 3) and the very brief moment that she lifted her head and saw Mr. Abitol-Salazar.

91I will deal firstly with T.H.’s degree of intoxication. There was no expert evidence led regarding the amount of alcohol T. H. consumed and how that could have affected her blood alcohol levels and degree of intoxication. According to T.H., however, she was so intoxicated that she vomited when she went to her car and continued to be sick when she was placed in the bed. She also testified that she was dry-heaving and vomiting the following day and could not drive her car as she was still intoxicated. She was also so intoxicated that she fell asleep in her car, had to be helped into the house as she could not walk, and then passed out in the bedroom.

92T.H.’s evidence is that she believed she was given some type of drug, as she was an experienced drinker and had drank more in the past and had never passed out. Her concern about being given some type of drug is consistent with her text to Ms. J.B. on November 22, 2915 asking if she had been given a drug. It is also consistent with her being tested for drugs at the Lindsay Hospital.

93I am concerned with her reliability as a witness given her evidence regarding her level of intoxication, whether the result of only alcohol or a combination of alcohol and some drug.

94T.H.’s identifaction of Mr. Abitol-Salazar as the person at her feet when she woke to to a sharp pain in her cervix was based only on seeing this person for a very brief period, in a dark room, before passing out again. T.H. described her period of consciousness as seconds. She used words such as “blur,” being “disorientated”, seeing a “silhouette” that she did not initially recognize and then passing out again. I have doubts about her reliability in identifying Mr. Abitol-Salazar in such a brief moment while intoxicated to the point that she had lost consciousness.

95T.H. gave a detailed description of the accused’s physical appearance when she saw him in those brief seconds, including his shirt, shape of his face, type of hair and the distinctive tattoo of an eyeball on his Adam’s apple. The ability to see and recall that level of detail conflicts with her evidence regarding her significant level of intoxication, the mere seconds that she saw him and the fact that these observations were made in a dark room.

96There was also another male who slept over that night. The burden is on the Crown to prove, beyond a reasonable doubt, that the accused was the person who sexually assaulted T.H. While T.H. described this other male person, Kyle, as having much different physical characteristics, given the unreliable circumstances of T.H.’s identification, I am left in doubt regarding her evidence identifying the accused as the person who sexually assaulted her.

97There were two aspects of T.H.’s evidence that cause me to have doubts regarding her credibility. One of my most significant concerns was her response when confronted with her prior inconsistent statement to PRP that she had a discussion with Ms. J.B. about a threesome prior to November 19, 2015. In chief, her evidence was that she was never asked by Ms. J.B. or Mr. Abitol-Salazar about having a threesome on November 19-20, 2015. On cross, she had no recollection of texts she and Ms. J.B. exchanged in June 2015, (five months earlier) about having a threesome. There were a number of texts exchanged on June 23-24, 2015 that were quite detailed and specific. I find it surprising and not credibile that T.H. would not recall those texts. However, even if I accept T.H.’s evidence that she could not recall those texts, I found her to be careless with the truth when confronted with an obvious inconsistency in her evidence.

98In cross-examination, T.H. testified that she had no recollection of any discussion with Ms. J.B. about a threesome other than in the texts she exchanged with her on November 22, 2015, after the alleged assault. She was then asked about her statement to PRP that she had a prior discussion with Ms. J.B.. T.H.’s initial answer was that, in her statement to the police, she was referring to the November 2015 texts. When asked to explain what she meant by the statement to PRP that these discussions occurred “a long time ago,” she attempted to deal with this obvious inconsistency by changing her evidence and then said the discussion occurred during a phone call or face-to-face conversation with Ms. J.B. prior to November 2015. When confronted with the inconsistency that her evidence in cross was that she had no prior discussions with Ms. J.B. regarding a threesome, in order to maintain her denial of recalling the June 2015 texts, T.H. had to come up with another explanation for her statement to the police. She changed her testimony to try to explain an obvious inconsistency in her evidence. The difficulties arising from her evidence and inconsistency on a key detail leaves me with a doubt regarding her credibility.

99To be clear, the evidence of text messages of prior sexual discussions is only relevant as it relates to T.H.’s credibility. In that regard, I am troubled by her willingness to change testimony and be less than candid when faced with contradictory evidence. Unlike inconsistencies in her evidence about details of what transpired the evening that she had been drinking, which I do not find have any impact on her credibility, in this area about what she recalled of prior discussions with Ms. J.B., I found her to be evasive, not forthright and careless with the truth. This was not an inconsistency on a minor issue.

100I am also concerned about her evidence when questioned about what transpired at the Lindsay hospital. T.H. became very hostile, defensive and angry when confronted with an emergency room report that was inconsistent with her evidence that she told the admitting staff that she had been sexually assaulted and the response she received was “what do you want us to do about that?” T.H. described the hospital as pathetic when confronted with the report. According to T.H., she had to insist that the hospital do something and she was upset as they only tested her urine. She was adamant that the hospital in Lindsay would not help her after reporting that she had been sexually assaulted.

101I do not accept the Crown’s submission that a hospital in a small community like Lindsay may not have had the resources to deal with someone reporting a sexual assault. It strains common sense that a hospital would treat a young woman reporting a recent sexual assault in the kind of dismissive and cavalier fashion described by T.H. When pressed on this point during cross-examination, I found T.H.’s responses to be troubling and unconvincing.

102The emergency room record is consistent with T.H.’s evidence that she was concerned about being given some type of drug. While a hospital record may not accurately reflect what a patient tells them about their presenting complaints, and may not have recorded her report of being sexually assaulted, I do not find credible T.H.’s evidence that it would initially refuse to offer assistance to her when she reported being a victim of a recent sexual assault.

103Reasonable doubt logically arises from the evidence or lack of evidence. The lack of evidence in this case relates to the absence of hearing from Ms. J.B.. While I am not prepared to make an adverse inference, as suggested by defence counsel, Ms. J.B. was present throughout the events of November 19-20, 2015, with T.H. and was the author of many texts sent to T.H. regarding the events on those dates.

104In considering the evidence in its totality and the absence of evidence, I am left with a reasonable doubt that Mr. Abitol-Salazar sexually assaulted T.H. The Crown has failed to meet the standard of proof which the law requires and the presumption of innocence has not been defeated.

L. Shaw J.