ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.P.

Defendant

Ivana Denisov for the Crown

Shayan Shaffie for the Defendant

HEARD: October 15-18, 2019

WARNING

An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding

reasons for judgment

boswell j. (Orally)

[1] SP is charged with sexually assaulting SR at an after-prom party on June 2, 2017. I will be using only initials to identify individuals referred to in this judgment because I have ordered a ban on publication of any information that could identify the complainant or any witness in this case.

[2] There is no dispute that SP and SR engaged in sexual activity on the date in question, including sexual intercourse. What is in issue in this trial is whether the Crown has established, to the reasonable doubt standard, that SR did not consent to the sexual activity and that SP did not have an honest, if mistaken, belief in communicated consent.

The Evidence

[3] Each of the parties testified about the events in issue. Their testimony was quite similar with respect to most of the salient facts.

[4] SR and SP were both present at a large party following a high school prom in York Region in June 2017. The party was held in the backyard of a rural home that was rented through Airbnb. There were as many as 200 – 300 people in attendance.

[5] SR and SP came from different schools. They did not know each other prior to the party, although SR followed SP on Instagram and was familiar with his appearance.

[6] SR arrived at the party somewhat early, when only about 30 – 40 people were there. Most of her group of friends had not yet arrived. She decided she would “get her party on” while she waited. In other words, she decided to start drinking the alcohol she had brought with her. That alcohol consisted of a mickey of vodka (375 ml) and a large can of something called Four Loko, which is a sugary drink with an alcohol content of about 12%. After about 45 minutes she had consumed half of the alcohol she brought and had taken a toke from a joint of marijuana that was being passed around. She described herself as “drunk, but okay.” By that she meant that, while drunk, she was fully aware of everything that was happening.

[7] She then left the group of friends she was with and went for something of a walkabout, taking in a broader perspective on the party. The walkabout apparently lasted some 20-30 minutes, which is a period of time SR has no recollection of. Her next recollection is of encountering SP.

[8] SP was with a group of his friends standing near a little playground area in the back yard. He was propped up on a log of some sort. SR said she recognized him from pictures she has seen of him on his Instagram account. She approached him and spoke to him briefly. They started dancing. They touched each other. SR pressed her bottom up against SP’s groin.

[9] SR tugged on SP’s clothes and signalled to him that they should go somewhere more private. She took him by the arm and led him away from the crowd and towards the back of the property. She said SP directed her to the back corner of the lot where there was a wooden deck in a small cluster of trees. The deck was about two feet off the ground. It was a relatively private area, though there was a small shed nearby and they had passed a young man urinating behind it on their way to the deck.

[10] Once at the deck SR and SP began to kiss passionately. Their evidence is marginally different about how things progressed from there. SR recalled that she straddled SP as he sat on the edge of the deck. SP did not recall that. SR recalled SP putting his hands down her pants and touching and digitally penetrating her vagina. SP did not recall that. Both recalled SR performing fellatio on SP as he stood beside the deck.

[11] The testimony of SR and SP is consistent that, to the point of the fellatio, everything that had occurred between them was consensual, even though there was very little actual discussion between them. Indeed, apart from an initial hello, it appears that SR and SP did not really speak to one another at all. SR agreed with defence counsel’s suggestion that they were communicating with their bodies.

[12] In any event, the fellatio went on for several minutes, then progressed to sexual intercourse. This is where the evidence of SR and SP diverges.

[13] SR testified that she moved towards the back of the deck and lay down on her back with her legs hanging over the side. She asked SP if he had a condom. He said he did not. She determined that she did not wish to have intercourse with him. He nevertheless pulled off her pants. She was wearing a bodysuit – similar to a one-piece swimsuit, skinny jeans and sneakers. She is not sure how her sneakers came off. She said she did not help SP take off her pants. She testified that she, in fact, told SP to “wait” and to “stop”. He did not listen. Instead, he inserted his penis into her vagina and had sexual intercourse with her. She testified that she told him to wait two to three times and to stop two to three more times. He eventually told her to shut up.

[14] SR is not certain whether SP ejaculated. When the sexual intercourse was complete, he handed her pants to her. They continued the pattern of not speaking to one another as she put her pants on. They then walked out of the area of the deck and back to the party. SR testified that they saw a male on the way out who asked SP, “did you hit that”? SP said “yes”.

[15] SP’s account of events surrounding the sexual intercourse differed in a number of material respects from that of SR. SP testified that he tapped SR on her triceps as she was performing fellatio on him. In his mind this was a signal that he was ready to have sexual intercourse. He said SR, in response to his tap, stood up and turned around. She asked if he had a condom. He said no. It did not seem to bother her, he said, that he did not have a condom. She kicked off her shoes and pulled down her pants. She stood on the ground, leaned over the side of the deck and used her hands on the deck as support. SP said she pulled aside the bottom of her body suit and he penetrated her from behind.

[16] According to SP, the intercourse lasted anywhere from five to fifteen minutes. It ended when he ejaculated on the ground. SP said that SR never said “wait” or “stop”. She appeared, in SR’s opinion, to be enjoying herself. He said it is impossible that she told him to stop because if he had heard anything like that he would have stopped.

[17] SP testified that, after the sex, SR put on her pants and shoes. He said he tied her shoelaces for her and they headed back towards the party. He said there was nothing unusual about her demeanour and they held hands as they left the deck area and moved into the open back yard.

[18] SP walked back towards his friends. SR went to find hers. The first friend she saw was JO. She immediately broke down into tears. She said she stayed at the party for about another hour, crying, then went home.

[19] The next day, two of SR’s friends persuaded her to go to the hospital. They went with her to Markham Stouffville Hospital, but that facility did not have a rape kit and they referred her to Scarborough Grace. At Scarborough Grace a nurse told her not to do the rape kit if she did not intend to press charges. At this point she was not inclined to do so, so she and her friends went home. The next day, her mother took her to McKenzie Health, where a rape kit was done.

[20] Subsequently SR attended at the police station and gave a statement to Detective Leach.

[21] SP was arrested on July 5, 2017 and gave a statement that same date.

The Governing Principles

[22] Sexual assault, like any Canadian criminal offence that may attract a jail sentence, involves both conduct and fault elements. To establish that SR sexually assaulted SP, Crown counsel must prove the conduct and fault elements to the reasonable doubt standard. The conduct elements require Crown counsel to prove beyond a reasonable doubt that SP intentionally touched SR, in circumstances of a sexual nature, and that SR did not consent to the touching. The fault element requires Crown counsel to prove beyond a reasonable doubt that SP did not know that SR was not consenting to the sexual touching.

[23] In this case, SR’s lack of consent and SP’s knowledge of that lack of consent are the only issues in dispute.

[24] This is a classic case where the only two witnesses to a significant event have given conflicting accounts of what happened. On SR’s account of events, she did not consent to sexual intercourse and SP must have known about her lack of consent because she told him to stop. On SP’s account of events, SR not only consented to the sexual intercourse, but she communicated her consent through her actions.

[25] It is vitally important that the court be mindful of a number of fundamental principles that apply to all criminal cases heard in Canada. They are:

1. SP is presumed to be innocent. That presumption stays with him unless and until Crown counsel establishes his guilt beyond a reasonable doubt;

2. The Crown at all times bears the burden of establishing SP’s guilt;

3. SP’s guilt must be established to the reasonable doubt standard; and,

4. Since SP testified, the reasonable doubt standard must be applied to his testimony. In other words, my analysis of the evidence in this case does not come down to a contest between the two versions of events. Obviously if I believe SP’s version of events, I must acquit him. But even if I do not unequivocally believe SP, his evidence may still raise a reasonable doubt in my mind about his guilt. In that case, I again must acquit him. Moreover, even if I were to outright reject SP’s evidence, such a rejection does not automatically lead to a conviction. In order to convict SP, I must be satisfied, on the basis of evidence I choose to accept and rely upon, that he is guilty of sexually assaulting SR. See R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397.

Analysis

[26] In closing submissions, Crown and defence counsel did their best to highlight factors that might cause me to be concerned about the credibility and reliability of the testimony of SP and SR respectively.

[27] Credibility and reliability are not the same thing of course. Credibility has to do with a witness’ truthfulness, while reliability has to do with a witness’ ability to accurately observe, recall and recount events in issue. See R. v. C. (H.), 2009 ONCA 56, at para. 41. These concepts do not always intersect. A witness who is not credible on a given point, cannot be reliable on that point either. But a credible witness may still not be reliable. With any witness, I am at liberty to accept all, some or none of their evidence.

[28] Defence counsel raised a number of factors, including the following ones, that he said should cause the court to be concerned about SR’s credibility and reliability:

(a) Her level of alcohol consumption. She admitted to rapidly consuming a half a mickey of vodka and half a large can of Four Loko, which, at 12%, is close to the equivalent of a half bottle of wine;

(b) She was prepared to express certainty about not having anything more to drink in the 20-30 minutes she cannot recall, even though she has no recollection whatsoever about what happened in that time period. This expressed certainty reflects, says defence counsel, a conscious tailoring of evidence to place it in its most positive light;

(c) She purposely omitted telling the investigating officer who interviewed her that she had engaged in consensual oral sex with SP. Defence counsel submits that this deliberate obfuscation should cast doubt on SR’s willingness to provide an account that is fully truthful and, on its own, should raise a reasonable doubt about SP’s guilt. SR testified that she was embarrassed to tell the police about the consensual oral sex. She may similarly be embarrassed to acknowledge that she had consensual intercourse; and,

(d) Her account of the removal of her pants defies common sense. She was wearing tight jeans and laying on them. It would not have been feasible for SP to remove her pants without her assistance, or co-operation at the very least.

[29] Crown counsel similarly raised a number of factors, including the following, that she said should cause the court to be concerned about SP’s credibility and reliability:

(a) He tried to minimize his role in the events. He told the police that he tried to push SR off. When he was asked to explain that comment under cross-examination at trial he gave the nonsensical reply that he did not mean that he was literally pushing her off. Instead, he meant that he was conveying that if she wanted to leave she was welcome to. He also told the police that he could not recall that SR performed fellatio on him, yet at trial he not only recalled the fellatio, but he recalled tapping SR on the arm during it, which was his signal that he wanted to progress to intercourse;

(b) When being questioned by Detective Leach, he acted as though he did not understand what the question, “did she give you oral?” meant, asking whether “oral” meant kissing;

(c) He claimed not to have witnessed any drinking at the after-prom party, which defies credulity; and,

(d) In direct examination, he acknowledged that when confronted by SR’s friends about what happened, he initially denied knowing her at all. In cross-examination he testified that he had never denied being with SR.

[30] From my perspective, both SR and SP gave what came across as credible and reliable accounts of the evening’s events.

[31] Although I can readily identify some minor issues with the testimony of each of SR and SP, the same can be said for the overwhelming majority of witnesses who testify before the courts.

[32] With respect to SR, I generally found her to be doing her best to provide an accurate and detailed account of the events in issue.

[33] Arguably, the single biggest question mark in terms of the reliability of SR’s testimony is her level of intoxication.

[34] Before proceeding further, I should make a few things clear. There is nothing wrong with a young woman having a few drinks at a party. There is nothing wrong with a young woman initiating sexual activity with a male; even a male she has just met. There is nothing wrong with a young woman engaging in a variety of sexual activities with a male and then deciding where she wishes to draw the line. Any such conduct is entirely in step with a person’s – male or female – sexual autonomy and individual equality. And none of the behaviour I have just described is capable of supporting an inference that a young woman who engages in it is any less credible for it.

[35] Alcohol is, however, a well-known and exceedingly popular intoxicant. And its intoxicating effects are similarly well-known for their impact on one’s perceptions and memory encoding. In other words, the consumption of alcohol may, in some circumstances, play a role in the assessment of a witness’ reliability.

[36] SR certainly consumed sufficient alcohol over such a short period of time that questions do have to be asked about what, if any, effect the alcohol may have on the reliability of her evidence.

[37] There is some inconsistency between SR’s trial testimony about her alcohol consumption on the night in question and some of her prior statements on the same subject. She said here that what she drank before her encounter with SP was consistent with her usual consumption at parties. She said at the preliminary hearing, however, that she had consumed more at the after-prom party than what she is used to. She told Detective Leach in her police statement that what she drank was “a lot” for her. She also said she was “kind of drunk and could not control herself”.

[38] I am not entirely sure what SR meant when she told Detective Leach that she could not control herself. It is not a statement that she adopted at trial and so the only use I can make of it is in my assessment of the credibility and reliability of SR’s evidence.

[39] Ultimately, I am satisfied that SR’s level of intoxication was not so high as to significantly impair her ability to accurately perceive and recall the events in issue. I have reached this conclusion based on the following considerations:

(a) I accept SR’s evidence that, while drunk, she had not lost control of her faculties. She exhibited some level of disinhibition, to be sure, but there is an absence of indicia of significant intoxication. There is no evidence that SR was slurring her words, stumbling, falling, acting erratically, or vomiting;

(b) No witness, including SP, testified that SR appeared to be particularly inebriated; and,

(c) While there is a period of 20-30 minutes prior to when SR met SP that she cannot remember, it is impossible for me to conclude that this lack of recollection is due to an alcohol-induced black out. In any event, SR does appear to have a detailed recollection of her interactions with SP; one that coincides quite closely with his sober recollections, save for the particulars surrounding the sexual intercourse.

[40] The balance of concerns raised by defence counsel with respect to the credibility and reliability of SR’s testimony are, in my view, relatively minor.

[41] When SR initially spoke to the police, she did not tell Detective Leach that she had performed consensual fellatio on SP. Changes over time in a witness’ version of important events may, as a matter of common sense, be an important factor in the assessment of the credibility and reliability of that witness’ evidence.

[42] It is important, however, to take into account the witness’ explanation for any such changes. In this instance, SR explained that her non-disclosure of the consensual fellatio was a reflection of her embarrassment about it. Defence counsel urged me to find this explanation disingenuous given that Detective Leach had done her best to make SR comfortable and SR appeared to have had no difficulty disclosing other, consensual, sexual activity that she participated in with SP.

[43] I am not prepared to reject SR’s explanation. When she met with Detective Leach, she was a teenaged female, meeting with a police officer she had never met before, discussing sexual activity she had engaged in with a stranger at an after-prom party. SR would have had a lot going through her mind, including a lot of mixed emotions. I do not think it fair to be overly critical of her in those circumstances. I found SR to be a generally sincere witness and I accept that she withheld some disclosure due to embarrassment.

[44] Defence counsel also urged me to conclude that SP would not have been able to get SR’s pants off if in fact events unfolded as SR said they did. SR was wearing very snug fitting pants. According to her testimony, she was lying on her back on the deck, with her legs dangling over the side. Defence counsel submitted that it would have been virtually impossible for SP to remove SR’s pants in those circumstances, unless SR was co-operative in lifting her bum up off the deck.

[45] The defence assertion is essentially threefold:

(a) SR’s version of events is less believable because it offers no explanation for how her pants could have been removed in the circumstances;

(b) SR must have co-operated in the removal of her pants, making it more likely that the sexual intercourse was consensual, or alternatively, offering evidence of communicated consent; or,

(c) SP’s version of events makes more sense because it offers a credible explanation for how SR’s pants came off.

[46] Frankly, I do not know how SR’s pants came off. Undoubtedly it would have been more difficult to remove the pants if SR was laying on the deck. But far from impossible. Whether SR did or did not resist the removal of her pants is neither here nor there. I am simply not prepared to find that this aspect of SR’s version of events significantly undermines her credibility or reliability as a witness.

[47] I will turn to the concerns raised with respect to SP’s evidence.

[48] With respect to SP’s testimony, the most significant concern, in my view, relates to his answers surrounding a confrontation he had with two of SR’s friends following the sexual encounter with SR.

[49] SR was not particularly clear with her friends about what had happened at the deck area with SP. She was obviously visibly upset. Two of her male friends approached SP to make inquires about what happened. One of those male friends, ND, testified at trial. He said SR was pretty upset but he did not really know what was going on. He had never seen her like that. He and another male approached SP and asked if he’d taken advantage of SR. He said that initially, SP said that he had not been with SR. Later SP conceded that he had been with her but that anything they did was consensual.

[50] Another of SR’s friends, BD, testified that she overheard the conversation between NR and SP. She said SP said he had never seen SR before and also that if they had done anything, it was consensual. She was not sure in what order things were said.

[51] At trial, SP said, in examination-in-chief, that he initially denied being with SR because he perceived her friends as being aggressive and he wanted to “probe what was going on”. He said that he eventually realized they were just trying to figure out what was going on. He then said that whatever happened was consensual. He thought things ended on a positive note.

[52] In cross-examination, however, he said he never denied being with SR. He said that SR’s friends asked him if he took advantage of a girl and he said that he had not done so.

[53] I am unable to reconcile SP’s answers in direct examination with his answers in cross-examination. Having said that, I do not make much of the inconsistency. It is so unusual that it seems to me more likely an indication of confusion about what he was being asked than a lie. SP is a young man. Giving testimony in a criminal trial is not a common experience. This inconsistency is not enough, in my view, to reject SP’s evidence as a whole. It just leaves me somewhat puzzled as to what exactly happened between SP and SR’s friends.

[54] Frankly, I did not find that NP and BD had particularly clear recollections of what was said during NP’s discussions with SP either. I think the dynamic of the encounter was probably out-of-the ordinary and perhaps confrontational. All witnesses were consistent, ultimately, that during the conversation, SP admitted he was with SR and he said that anything they did together was consensual.

[55] The balance of issues raised by Crown counsel with respect to SP’s credibility and reliability are, in my view, minor.

[56] I accept that it may strike some people as peculiar that a twenty-year-old male would not know what “oral” means. But I make three observations.

[57] First, SP found himself in a very strange and unfamiliar situation. He was in a police station, charged with a serious criminal offence. He had never been in trouble with the law before. He appeared genuinely confused about why he was there and what the allegations were against him.

[58] Second, young people have their own way of speaking to one another in what, to older generations, may at times appear to be coded language. I have more than enough life experience to know that young males sometimes speak to one another in terms that I neither readily understand nor would attempt to replicate. All this is to say that I accept that SP may not have immediately connected the term “oral” with fellatio. “Oral” may simply not be a term used in his social group to refer to fellatio.

[59] Finally, there was no downside to SP in admitting he had engaged in oral sex with SR. There was no suggestion that the oral sex was not consensual.

[60] In the same vein, I do not make too much of SP’s explanation for what he meant by “pushing off” SR. Frankly, his explanation for the term did not make much sense to me, but again, I accept that SP and I may not speak exactly the same language. Moreover, some allowances have to be made for all witnesses. As I said, giving testimony in a trial is a weird and unsettling experience. It doesn’t serve anyone’s interests to require too exacting a performance out of any witness.

[61] It may also strike some people as unusual that a young man did not recall being on the receiving end of oral sex with a young woman at a recent after-prom party. In my view, that sort of thing usually sticks out in a young man’s mind. Having said that, I cannot accept that SP feigned an absence of recollection about that event. It would appear to serve no purpose for him to pretend to forget about it, yet proceed to agree that he had engaged in other sexual activity, including intercourse, with SR. I do not accept that he was attempting to minimize his role in the encounter with SR. I accept that, in that moment, in the police interview room, he did not recall the oral sex.

[62] Crown and defence counsel each tendered demeanour evidence as circumstantial evidence supporting each of their positions.

[63] Evidence that SR immediately broke down into tears – and was essentially inconsolable – when she first encountered her friends following the alleged sexual assault is consistent with something bad having just happened to her.

[64] At the same time, a segment of SP’s video-recorded statement to Detective Leach was introduced into evidence on consent of the Crown, pursuant to the principles enunciated by the Court of Appeal in R. v. Edgar, 2010 ONCA 529 and R. v. Liard, 2015 ONCA 414. Detective Leach was somewhat coy with SP. She told him he was being questioned about an alleged sexual assault but she did not initially tell him who the complainant was. SP appeared very upset initially because he was under the impression a former girlfriend had made good on a promise to get back at him for breaking up with her. He appeared genuinely shocked and surprised to hear that the complainant was in fact SR. His demeanour at that moment tends to support the presumption of innocence.

[65] As my foregoing analysis reflects, I found SR to be a generally credible and reliable historian. I similarly found SP to be a generally credible and reliable historian.

[66] Often it is helpful to test the credibility of a version of events against the probabilities of the circumstances of the case as a whole. Justice O’Halloran of the British Columbia Court of Appeal famously described the analysis of a witness’ credibility in Faryna v. Chorny, 1951 252 (BC CA), [1951] B.C.J. No. 152, as follows, at para. 11:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[67] Essentially, O’Halloran J.A. was urging a common sense examination of a witness’ version of events. Does it hang together? Does it make sense? Is it consistent with common sense and human experience?

[68] I find myself no farther ahead when I gauge each of SR’s and SP’s version of events against the “probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances present here. The accounts of SR and SP are, by and large, on the same page until the moment when SR asked if SP had a condom. They agree that SP said no, he did not have a condom. And they agree that they had sexual intercourse anyway. SP says it was consensual. SR says it was not.

[69] One might well ask, as Crown counsel does, as a matter of common sense, why would SR ask if SP had a condom if it made no difference to her? In other words, Crown counsel suggests it makes perfect sense that SR would be prepared to engage in a variety of sexual activity, but demur on the matter of intercourse without a condom. It makes little sense, on the other hand, for SR to ask about a condom and then go ahead without one anyway.

[70] I agree that, as a matter of common sense and human experience, it would be reasonable for a young woman, otherwise prepared to engage in sexual activity, to draw the line at unprotected intercourse. On the other hand, it is entirely possible that a young woman would have a preference for protected intercourse, but not consider it a deal-breaker.

[71] I am in the rare position of having to concede that I found the evidence of SR and that of SP equally compelling. I cannot unequivocally accept either version of events because each credible account is at odds with the other.

[72] This case must ultimately be resolved on the W.D. analysis. SP’s evidence leaves me with a reasonable doubt about what happened at the deck and whether what happened was a crime.

[73] In the result, SP is acquitted of the charge against him.

Boswell J.

Released: December 3, 2019