Court File and Parties

COURT FILE NO.: CR-1013/18

DATE: 2020-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

David Case and Celine Loyer

Accused

COUNSEL:

S. Baker, for the Crown

N. Xynnis, for the accused Case

M. Haraschuk, for the accused Loyer

HEARD: January 27, 29, 30 and 31, 2020

REASONS FOR JUDGMENT

HENNESSY, J.

[1] The defendants were jointly charged with one count of sexual assault on J.S.T.

[2] The primary issue is whether there is reliable and credible evidence of the assault. The complainant described what she recalled happening to her. Her recollection came via a flashback, which she experienced during the hours after the alleged assault.

[3] The issue of consent and capacity are intertwined with the complainant’s alleged state of unconsciousness in the hours immediately before and after the alleged assault.

The evidence

[4] The complainant was 19 years old in 2011 when she met the defendants at the deli-restaurant where she worked in the kitchen. At the time, she was new to Sudbury, had moved here from a small town in southern Ontario. She lived with her partner and had very few friends and was not otherwise connected in the community.

[5] The defendants were regular customers at the restaurant. David Case was well-known locally as a track coach. There was no precise evidence with respect to his age, but there was vague evidence that he was over the age of 45 when the incident occurred.

[6] Celine Loyer was a track athlete. Mr. Case was her coach. The complainant believed from what she heard that Ms. Loyer was aspiring to an Olympic career. Mr. Case was well known among the patrons at the restaurant and by the restaurant owner.

Pre-incident relationship

[7] The complainant says that all interactions between the defendants and herself were initiated by Mr. Case. He showed an interest in her fitness. J.S.T. was flattered by his interest and by his attention because he was training a female athlete for the Olympics. The complainant had been involved in sports in high school and was very interested in meeting this track coach and athlete.

[8] J.S.T. recalled that he would come to the counter to speak with her. She said that she did not go to their table or approach them. Over the course of a few brief conversations, the complainant learned that she shared interests with them in track as well as in fishing. Mr. Case told her that he dealt in high risk commodities and invited her to a coffee shop to discuss how he could help her invest. J.S.T. gave her email address and cell number to Mr. Case. Over the next few days the complainant received what she called random texts from Mr. Case including photos of him with Ms. Loyer at a gay bar and of him fishing.

[9] The complainant, her partner, and the two defendants met at a local coffee shop approximately one week prior to the alleged incident. The complainant and her partner recalled that Ms. Loyer did not contribute to the conversation and that Mr. Case spoke for her. Mr. Case told the complainant that with his investing advice Ms. Loyer had been able to make enough money to pay off her student loans.

The evening of June 17, 2011

[10] Mr. Case invited the complainant to dinner with the defendants. It was known to the defendants that J.S.T.’s partner was working that evening and was therefore not joining them for dinner. She was very excited to go. The defendants picked J.S.T. up at her apartment in a black rental car. She was driven to the home of Mr. Case and arrived at approximately 7:00 p.m.

[11] Before dinner, Mr. Case offered the complainant a “strong beer.” He told her it had an alcohol content of 6-7%. She drank the beer from the bottle before and during dinner.

[12] Following dinner, Mr. Case offered the complainant a shot to celebrate their new friendship. Mr. Case went to the kitchen and poured three shots. He brought them to the living room. Each of the three people present drank the shot. J.S.T. recalled that this may have been about 9:00-9:30 p.m.

[13] J.S.T. recalled that she was sitting on the couch between the two defendants at the time. It had been a relaxed and enjoyable evening, with nothing out of the ordinary happening up until this point. Shortly after drinking the shot, the complainant recalls that she felt drowsy; then her head hit the back of the couch and she lost awareness of her surroundings. This was her last clear memory of the evening before returning to her residence.

[14] The following day, in describing how she felt at that moment, J.S.T. said she felt fuzzy after drinking the shot, not in control, and that she was losing control of her body.

[15] In her testimony, the complainant wanted to make clear that what happened to her was different from a blackout caused by drinking too much. She had experienced blackouts from drinking and insisted that she had never felt like this before.

[16] J.S.T. clearly recalled drinking only one beer and one shot that evening. She maintained this assertion in the face of cross-examination propositions put to her that at various times she told her friend, the nurse at the hospital, and the officer who interviewed her in 2011 that she had: 2-3 drinks, 3-4 drinks, 4 drinks, two of which were beer.

[17] It was uncontested evidence that the complainant was a seasoned and regular drinker, with what she described as a high tolerance for alcohol.

[18] I find these inconsistencies with respect to the amount of alcohol the complainant may have consumed, insignificant. The evidence is uncontested that the complainant was unconscious by 9:30 p.m. I have no evidence that consuming as much alcohol as two beer and two shots over two and a half hours – which is the upper range of alcohol consumed by the complainant – would cause her, an experienced drinker, to lose consciousness or memory. J.S.T. specifically rejected the proposition that two to four drinks would have rendered her unconscious. J.S.T. also testified that she did not voluntarily consume any drugs that night.

[19] The complainant next recalled being in the back seat of Mr. Case’s car being dropped off in front of her residence. It was somewhere between 12:30 a.m. and 1:00 a.m. Mr. Case was standing outside the car. She felt “confused, drowsy and out of it.” The complainant exited the car and walked to the front door of her building. She did not feel well. Once Mr. Case drove away, she entered the building and then struggled with getting down the three flights of stairs to her basement apartment. She was uncoordinated. All of this was a very blurred recollection.

[20] J.S.T. was met by her partner in the stairwell. Her partner describes the complainant as incoherent, unsteady on her feet, with her pants half-way down her legs, and unable to respond to any questions. The partner undressed the complainant, put her in pajamas and into bed.

The flashback

[21] The complainant testified that during the night she experienced a flashback of being sexually assaulted by Ms. Loyer while Mr. Case sat close to her head and made encouraging comments to Ms. Loyer.

[22] J.S.T. admits that she may have called the flashback a weird and vivid dream or dream-like when first recounting the incident to her partner. Over the course of the next few days, the complainant referred to her recollection as a flashback of being sexually assaulted by Ms. Loyer who was on top of her, with Mr. Case giving direction.

[23] In her evidence the complainant could recall the event from her flashback. She recalled the visual images, the words spoken, and her feelings. She recalled the sensory experience and felt violated. In her recollection, the complainant was lying on her back in the living room with her legs stretched out. Her pants were down. The defendant, Ms. Loyer, was between her legs, possibly lying partially on top of her. The complainant could see Ms. Loyer’s face. The complainant could feel the defendant, Ms. Loyer, digitally penetrating her. Ms. Loyer was using her right hand. Ms. Loyer was clothed. She would see the defendant, Mr. Case, somewhere “above” her, possibly sitting at her head. She recalls only his face. She recalls hearing him say: “You just made her squirt everywhere. Do it again.”

[24] The complainant believed that the words spoken by Mr. Case referred to vaginal fluid.

[25] The complainant testified that she had no other memory of that night until she was delivered home.

[26] The complainant used the word flashback when she described her recollection, which came to her over the 24-48 hours. She testified that her belief that these things actually happened to her were validated by the bruises on her upper thigh area and her sore vagina the next day.

The next day: Saturday June 18, 2011

[27] The complainant got up early on Saturday and went to work. It was a terrible shift according to both the complainant and her work mate. J.S.T. felt sick and nauseous. She went to the bathroom frequently. She had episodes of vomiting and diarrhea. She was “out of it” and had hot and cold sweats. She was unproductive. She was anxious and confused about what had happened the night before. Her co-worker said the complainant looked as if she had been through a war.

[28] Throughout a rigorous cross examination, J.S.T. denied that these physical symptoms were anything like the symptoms she had ever experienced from over-drinking.

[29] The complainant talked to her co-worker S.M. about how she was feeling and also about the night before. The complainant told S.M. that she was trying to piece together what had happened. The complainant left work early at the urging of her co-worker. That evening the two young women communicated by text. In these communications, S.M. recalled that J.S.T. said that she had had only two drinks the night before but had felt like she had lost control of her body and that she believed she had been sexually assaulted at Mr. Case’s residence. She gave the co-worker some details that she remembered in bits and pieces.

[30] The co-worker accepted in her police interview, which was in 2017, six years after the incident, that the complainant did not have a clear memory that day and that at one point during their discussion she said she did not remember what happened. However, the co-worker rejected the suggestion that the complainant ever said that she did not know what happened. The co-worker testified that over time J.S.T. was able to provide specific details of what happened that night.

[31] As per their usual Saturday morning routine, the defendants arrived for breakfast at the restaurant. While they were there, Mr. Case approached J.S.T. at the counter and said that they had had a wild night the night before and that they were hungover. The complainant was very confused as she did not recall that they had been drinking much at all. They were acting like nothing unusual had happened the night before.

[32] J.S.T. also spoke to her partner the next day before and after her shift at work. Her partner testified that J.S.T. was very sick in the morning. J.S.T. told her partner that she had had a very vivid dream of being sexually assaulted. J.S.T. testified that she may have used the term dream-like experience when she spoke to her partner. She was very scattered at first and then slowly started to piece things together over the next 24-48 hours. Her partner was very concerned and urged her to go to the hospital to have a “rape-kit” done.

The hospital visit

[33] The complainant called the Crisis Centre and visited the hospital on June 21 and June 22. She was examined by two different sexual assault nurses. On the second visit, J.S.T. consented to having photographs taken of the bruises, which had been mapped by both nurses on a body diagram.

[34] Both nurses noticed and charted bruises on the left upper inner thigh area which were described as circular with finger-like patterns and as oblong red-yellow bruises. Both nurses also noted a round bruise on the complainant’s throat/neck. The complainant reported to both nurses experiencing a sore and painful vagina.

[35] The notes from the first visit show that the complainant provided a description of a sexual assault by two assailants. She told the nurse that she had no memory of the night but did remember that she was lying on her back with the woman on top, that she was penetrated by the woman’s fingers, and that she was dropped off at home by the assailants. The notes also record vaginal pain. The nurse on the second visit did not chart a narrative.

[36] There were some discrepancies between the notations of bruises on the two visits. I am of the view that these inconsistencies can be explained easily. The additional small bruises, that were marked by the nurse on the second visit, were of no concern to the complainant. Some of the bruises were so faint that they were only visible through a blue light. The complainant was not alleging that these bruises came from the incident.

Emails communications and the Sunday visit to David Case residence

[37] The complainant accepted an invitation to Mr. Case’s residence again on the afternoon of Sunday, June 19, 2011. Mr. Case picked her up and J.S.T. brought a pineapple as a nice gesture. During the visit, she accepted a drink from Mr. Case and recalled sharing the pineapple.

[38] In the days following the Friday dinner, J.S.T. and Mr. Case exchanged emails. In one of them, J.S.T. recalls telling Mr. Case the contents of her flashback. In response, Mr. Case sent an email to the complainant describing a different scenario of what had happened the night of the dinner. He said that she had drunk too much, had become very intoxicated, yelled, used profanity, tried to take off his pants, stripped naked, masturbated, and kissed Ms. Loyer. Mr. Case assured J.S.T. that they could keep what had happened on their wild night between them. Mr. Case said no one had to find out.

[39] This email between Mr. Case and the complainant, like all other communications but one, was not before the court. J.S.T. explained that the communications with Mr. Case were through an encrypted Hushmail account that did not survive in her mail box. Only the account holder Mr. Case could keep or store the emails.

[40] The defence produced one email from the Hushmail account dated Tuesday June 21, 2011. This was an email sent from the complainant in response to Mr. Case’s alternative narrative. In the email, J.S.T. apologized for her behavior and said: “I have no memory… however, if my mind was clear; I would never ever ever have done that in a million years.” J.S.T. explained why she apologized. She said she idolized Mr. Case for his success; she believed him. Mr. Case was so much older than she was, a pillar of the community, a friend of her boss, and an Olympic coach. J.S.T. said that her apology was based on how Mr. Case told her she behaved. In her testimony, she absolutely denied doing any of the things Mr. Case told her she had done.

[41] During the Sunday afternoon visit, the complainant believed that Mr. Case was asking her questions that were designed to gauge her memory of what had happened on Friday night. After the short visit, Mr. Case drove Ms. Loyer home. The complainant accompanied them on this drive. At some point during the visit or the drive Mr. Case told J.S.T. that Ms. Loyer was bisexual and then he winked at her.

[42] In a final email, J.S.T. told the defendants that she was sick and did not want further communication with them. She said she was going to go to the hospital. Mr. Case responded that she probably had the flu and should not go to the hospital.

Interviews with the Police: 2011 and 2017

2011

[43] Notwithstanding the alternate narrative Mr. Case pushed on J.S.T., the complainant was convinced that she has been sexually assaulted. On June 23, 2011, she called the police. Two officers came to her home to speak with her. They conducted an interview with her in their car. The complainant’s view of this interview was quite negative. She recalled the interviewing officer telling her that she did not have enough evidence to proceed with a charge against the defendants at that time. She recalled the officer saying that she had cheated on her partner and that this story was a cover up. She also recalled the officer saying that he knew Mr. Case from high school. J.S.T. left that interview with a feeling that the officer did not believe her.

[44] The officer testified. He recalled that the complainant said she had no memory of the assault. However, he also noted that the complainant recounted details of the sexual assault and had also provided the officer with the alternate narrative that Mr. Case had outlined to her. The officer denied saying anything to the complainant that suggested he knew Mr. Case, that he did not believe the complainant, that he thought her story was a cover up, and he denied telling the complainant that there was not enough evidence for a charge. He testified that the complainant did not want to proceed with charges at that time.

[45] The officer and the complainant both testified that the complainant asked if the defendants had ever been charged with sexual assault before. They also agreed that the complainant declined the officer’s offer to go to speak with the defendants. The complainant explained that she declined because she feared having the police speak to the defendants, who were regular customers at the restaurant, if there was not enough evidence to proceed. In her testimony, J.S.T. denied being unsure of what had happened when she spoke to the police.

2017

[46] In June 2017, the police contacted the complainant and invited her to give a video statement. The police also interviewed the complainant’s partner and co-worker. Following those interviews, the police laid charges against both defendants.

Issues and discussion

[47] Sexual assault is the intentional application of force, in the absence of consent, which violates the sexual integrity of the complainant. The burden is on the Crown to prove beyond a reasonable doubt each of the elements of the offense of sexual assault.

[48] The primary issue in this case is the reliability of the complainant’s account. The issues of consent and capacity and parties to the offense also arise.

Reliability

[49] In this case, the focus is on the question of whether there is reliable evidence that proves beyond a reasonable doubt that the alleged assault happened.

[50] The reliability of a witness’ evidence is separate but related to the issue of credibility. As noted by Watt, J.A., in R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall, and recount events that are in issue. Watt, J.A. writes, at para. 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[51] In this case, there was one issue of credibility raised, that is about whether the complainant had two or up to four drinks in the first part of the evening. While there was an inconsistency on how much she drank, as I noted earlier, that inconsistency is of no consequence. The inconsistency does not diminish in any way J.S.T.’s credibility.

[52] However, a witness whose evidence is credible and honest may still be unreliable. The issue squarely before the court is whether the witness’s recollection of a sexual assault is reliable.

[53] A witness gives reliable evidence when that evidence can be relied on with confidence, that it is trustworthy and sure. Oxford (dictionary online) defines “reliable” as “able to be trusted” or “a person or thing with trustworthy qualities”.[^1] It is not scientifically assessed.

Defendants’ position on reliability

[54] The position of the defendants is that there is no reliable evidence that this assault ever happened at all. They submit that J.S.T.’s account is unreliable. They rely on the complainant’s evidence that she was unconscious during the period of time covering the alleged assault.

[55] In particular, the defendants rely on the complainant’s characterization of her recollection of the incident on Saturday. In her first account, in conversation with her partner, J.S.T. referred to the incident as a weird and vivid dream.

[56] The defendants argue that a person cannot have a memory of an event that occurred when that person was unconscious. They argue that at best the complainant had a memory of a dream.

[57] Counsel for the defendants strongly suggested to the complainant and argued in submissions that the complainant drank alcohol to the state of blackout and at some point during the evening had acted out in sexually provocative ways.

[58] This alternate scenario proposed by the defendants includes a description of sexual activity, being digital penetration, which corroborates one aspect of the complainant’s account. However, this alternate scenario was raised by the defendants as another plausible theory which is inconsistent with guilt. Notwithstanding the gaps in J.S.T.’s evidence, I do not find this alternate scenario reasonable. It does not accord with the complainant’s uncontested evidence of her experience with and tolerance for alcohol nor her experience with hangovers. It defies logic that a person who was so incapacitated that she could hardly walk could also kiss Celine Loyer against her will, try to take David Case’s pants off, strip naked and masturbate. It makes no sense that a 19-year-old woman could have taken advantage of a fit man and woman in the way they described. It does not fit with the fact that the defendants drove her home without mentioning a word of this behavior. When assessed logically, this theory does not leave me with any reasonable doubt.

Is J.S.T.’s account of the incident reliable?

[59] It is not controversial that the complainant was under the influence of some substance during some time with the defendants on the evening of June 17, 2011. The Crown did not lead any evidence to suggest the nature of the substance. The complainant, an experienced consumer of alcohol, testified that she was certain that she did not drink nearly enough to be impaired, nor were her physical symptoms that night or the next morning consistent with her experience with the over consumption of alcohol.

[60] In any event, the identity of the impairing substance or how it was that the complainant consumed the substance was not put in issue in this prosecution.

[61] J.S.T. described her last clear memory as drinking a shot while sitting on the couch between the two defendants possibly around 9:30 p.m.

[62] J.S.T.’s next memory is in the form of a flashback of a sexual assault. She described this memory as akin to a “snapshot.” There is no timeframe of the flashback; however, it is specific as to body position, room location, people involved, the fact she was unclothed or her pants were down, and sensory experiences of digital penetration and hearing Mr. Case’s spoken words.

[63] When considering this evidence, I note that the complainant was not recounting a memory of a distant past, nor was she explaining some memory block over a long period of time, nor a memory recovered through therapy. She recounted the event to her partner and her co-worker spontaneously and naturally, and very nearly contemporaneously with the event. There was no evidence of any suggestion made to J.S.T. about what may have happened at the Case residence.

[64] The assessment of the complainant’s reliability is a factual assessment. My focus will be on: the complainant’s various accounts over time, looking at the consistencies and inconsistencies; the proximity in time between the alleged incident and the first and early recollections of the accounts; the frequency of recollection; whether the memory was influenced by other factors; and what information went into the memory from the start (R. v. Perlett, 2006 CanLII 29983 (ON CA), [2006] 212 C. C. C. (3d) 11, at paras. 110-11; R. v. M.(B.), 1998 CanLII 13326 (ON CA), [1998] 130 C.C.C. (3d) 353, at para. 90. In addition to the content of what the complainant recounted, an assessment of the reliability of her recollection will take into account any confirmatory evidence.

[65] J.S.T. also testified about her return to her residence and her difficulty negotiating the stairs down to her apartment. That account was supported by her partner who came out to assist her in navigating the stairs and was able to give a full description of the complainant’s physical and mental condition.

[66] When I consider all of the above factors, I am mindful that the simple repetition of a prior statement is not proof of its truthfulness or accuracy.

[67] J.S.T. recounted the incident consistently starting with her earliest account, which had very few details, to the final account which she gave the nurse four days later. This final account, with its admitted memory gaps, did not change over time. J.S.T. was described as “scattered” on Saturday when she first tried to recall the incident. However, she was able to articulate more details as she herself became less scattered in the next 24-48 hours. These later details are not inconsistent with the first telling of her flashback. As her partner and co-worker testified, J.S.T. then filled in the details, “in bits and pieces,” over the next few days.

[68] It is also noteworthy that J.S.T. maintained her account in the face of an alternative narrative put to her by Mr. Case, in which he described her as the sexual aggressor in the evening. She did not waver in her account even though the alternative scenario was put before her by the defendants.

[69] There was no evidence that J.S.T. had any assistance or suggestions made to her that prompted her recollection. J.S.T. recounted an event that took place in the location she last recalled being, with the people whom she last recalled being with, and on the evening that she was with those people in that place. She clearly recalls being picked up and dropped off by Mr. Case. There is no suggestion that she was ever in another place or with other people that night. This is not controversial evidence. In fact, the defendants accept this evidence of location, timing and who was present by the email and Mr. Case’s comments to her Saturday morning and Sunday afternoon.

[70] The defendants’ position is based on the theory that a person cannot recall events that took place when the person was unconscious, or that a dream is not a real event. The complainant used the word unconscious to describe her state after she drank the shot and before she was returned home. J.S.T., by my assessment, was a naïve, relatively unschooled 19-year-old when the event took place. The best we can take from her account is that she does not have a continuous memory of the evening. She does recall the events that she says came to her in a “flashback.” A flashback is a type of a memory. The Merriam-Webster Dictionary (online edition) defines the noun “flashback” as, “a past incident recurring vividly in the mind” and the verb as, “to focus one’s mind or vividly remember a past time or incident.”[^2] The definition of the noun “flashback in The Oxford Dictionary (online) is “a sudden and disturbing vivid memory of an event in the past, typically as the result of psychological trauma or taking LSD.”[^3]

[71] I am satisfied that J.S.T.’s consistent account of what happened to her at the Case residence has inherent trustworthiness and is therefore reliable.

Confirmatory evidence

[72] In these circumstances, with J.S.T.’s significant memory gaps, I should still exercise caution of the complainant’s account and look at the corroborating evidence.

[73] The physical evidence from the hospital record of the bruises and the recorded vaginal soreness are important circumstantial physical evidence that supports the complainant’s recollection. There is a striking correspondence between the medical evidence and the complainant’s flashback. That evidence, in my view, corroborates and confirms the complainant’s account.

[74] Where the case is based on circumstantial evidence, a finding of guilt may only be made where the inference that the essential element of the offence is made out is the only reasonable inference (R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; R. v. Garciacruz, 2015 ONCA 454, 320 C.C.C. (3d) 414, at para. 68. R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[75] To draw an inference from circumstantial evidence, I must be satisfied beyond a reasonable doubt that the bruises were the result of the assault J.S.T. recalled in the flashback is the only reasonable inference which can be drawn. This requires that alternative explanations be excluded.

[76] The defendants suggest that J.S.T. may have bruised herself by unknowingly bumping into tables at work. J.S.T. flatly rejected this suggestion. In my view, this theory that J.S.T. may have sustained these bruises by walking into a table at work, when viewed logically and in light of human experience, is not plausible. The location and shape of the bruises is not consistent with bumping into a table. I do not accept this alternate explanation for the bruises, as rejected by the complainant in cross-examination, to be plausible or reasonable.

[77] Importantly, once I reject the version of facts regarding the incident that Mr. Case advanced to the complainant in his disappearing emails, as I do, I am left with an acknowledgement by Case that something sexual did occur that evening, just not in the way described by Case. I bear in mind that such an acknowledgment can only be used as the case against Mr. Case, as in these emails, as in most other aspects of the complainant’s dealings with the defendants, Loyer did not personally contribute words.

[78] I am satisfied that the only reasonable inference is that the bruises were made by hand pressure on J.S.T.’s upper thigh during the sexual assault. The bruises appeared immediately following the incident. They were not on the complainant’s body earlier that day when the complainant showered. They were in a place where the complainant described the defendant, Ms. Loyer’s hands. Finally, the bruises were noted by the nurses to be oblong, finger-shaped bruises. This physical evidence, as I noted earlier, bears a striking resemblance to the flashback and I accept it as confirmatory evidence of J.S.T.’s account of what happened to her that night.

Conclusion on reliability

[79] When assessing the complainant’s reliability, I take into account all of the evidence considered as a whole, without isolating or focusing or singling out individual items of evidence.

[80] The complainant’s conscious mind, notwithstanding the significant gaps in her memory, provided her with the ability to accurately observe, hear, and feel what was happening to her.

[81] J.S.T. first recounted the incident the morning after her evening at the Case residence. Her various accounts in 2011 were consistent with her 2017 police statement, preliminary hearing evidence, and evidence at trial. J.S.T. recounted the events as something that she recalled had happened to her.

[82] J.S.T.’s confusion on Saturday may be explained by the effects and after-effects of the consumed substance. As she was trying to make sense of what had happened, Mr. Case’s comments that they had a wild night and had drunk so much they were hungover, can only be seen as designed to add to her confusion. However, his “alternative version” does not align in any way with the complainant’s clear recollection of how much they had been drinking, the calm and relaxed demeanor of the defendants throughout the evening, or the drop off at the complainant’s residence.

[83] There was no expert evidence proffered on the way that memory works. It would have been especially difficult to attempt to opine on this issue given that the substance the complainant consumed was unknown.

[84] However, J.S.T.’s memory can be assessed by looking at the aspects of her recollection that were corroborated or unchallenged. Her plans for the evening, the time and her state when she arrived home, her condition the following day were corroborated by the evidence of her partner and her co-worker. In cross examination, J.S.T. was not challenged on when she lost consciousness, where she was, who was present with her or the timing of departure from the Case residence.

[85] Mr. Case also assured J.S.T. that he was prepared to keep the whole thing between them and that no one need find out. Indeed, it is a mark in favour of the complainant’s reliability that she held to her account in the face of the alternate versions offered to her by Case, which she was able to reject as false.

[86] J.S.T.’s memory of the events leading up to drinking the shot are clear and uncontradicted. She did not attempt to hide the fact that she had large gaps in her memory of that evening. J.S.T. made an effort to not fill in the gaps in her memory. She distinguished her understanding between dream and flashback. She distinguished between being blacked out, which she said was a state caused by excessive alcohol consumption, and being unconscious, which she believed came from ingesting some unknown substance.

[87] While J.S.T.’s memory of the after-dinner hours had large gaps in it, it is the content of her recollection which is important; what she was able to observe, hear, and feel. Those perceptions were stored in her memory and came back to her vividly in the following hours.

[88] I can reconcile both accounts from the complainant: that she has no memory of events immediately preceding and immediately following the assault while at the same time being able to recount details of the assault.

[89] The confirmatory evidence allows me to conclude, and I do, that the sexual assault was not a dream. I am satisfied that J.S.T. had an opportunity to observe what happened to her, that she accurately recalled it, and recounted it consistently and frequently in the following days.

[90] I accept that J.S.T. has reliably testified about what happened that night, that she was sexually assaulted by Ms. Loyer while she was lying on the floor. J.S.T. also recalled, and I accept, that Mr. Case was sitting by her head during the assault was going on, and both commented on and encouraged Ms. Loyer to continue with the assault.

Consent and Capacity

[91] The issues of consent and capacity also arise in this case. The road maps for a consideration for these issues were recently outlined by Pardu J.A. in R. v. G.F., 2019 ONCA 493, [2019] 146 OR (3d) 289. Issues of incapacity are separate and distinct from consent. They can arise in a multitude of circumstances. Pardu J.A. noted, at para. 41, that it is essential to assess the issue of consent before looking at the issue of incapacity.

[92] Consent is the voluntary agreement of the complainant to engage in the sexual activity in question (Criminal Code, R.S.C. 1985, c. C-46, s.273.1(1), in effect June 2011). It is the conscious agreement of two people to engage in every sexual act in a particular encounter (R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440). Consent is a defence to a claim of sexual assault.

[93] The absence of consent is a subjective matter determined by reference to the complainant’s subjective internal state of mind (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25-27).

[94] The Crown is required to prove the absence of consent by reference to the complainant’s subjective internal state of mind. If the complainant consented, the second step is to consider whether there are any circumstances that may vitiate her apparent consent.

[95] The fact that J.S.T. cannot remember what happened means that “any number of things may have happened during the period in which she had no memory.” Therefore, her denial of consent is based on an assumption about how she thinks she behaved at the time she cannot remember. (R. v. Esau [1997] 2 S.C.R. at para. 16).

[96] In her examination in chief, J.S.T. was asked if she wanted to engage in any sexual activity with either of the defendants. She said she did not. The defendants did not challenge this evidence in any way. Their defence was based on the proposition that there was no sexual activity between the parties and that the Crown had failed to prove that any sexual activity took place in Mr. Case’s living room.

[97] In cross-examination, the defendants did not challenge the complainant in any way on the issue of consent. They did not put to her any propositions or alternate scenario that she did consent. There is no suggestion in the evidence that J.S.T. consented to any sexual activity with Celine Loyer. Although the burden remains on the Crown to provide that there was no consent to the sexual activity, there is no reasonable alternative in these circumstances to consider but that J.S.T. did not consent to the sexual activity.

[98] I am satisfied beyond a reasonable doubt that the complainant did not affirmatively and subjectively consent to sexual contact with either Celine Loyer or David Case.

[99] In Ewanchuk, at para. 40, the court held that where non-consent is proven, there need not be an inquiry into capacity (G.F., at para. 46). I am satisfied that the complainant did not affirmatively consent to sexual touching. Therefore, it serves no purpose to inquire further to assess whether, had she consented, she would have had the capacity to do so (G.F., at para. 48). This is not the case where it would be useful to make an alternative finding.

[100] In this case, the only account of the evening comes from the complainant, who described that she had become unconscious at some point during the evening. The alternate version of events put forward by defense counsel would have the complainant so intoxicated that she blacked-out and that no sexual activity between the complainant and Celine Loyer took place.

Parties

[101] The Crown’s theory of liability against Mr. Case is as a party under s. 21(1) of the Criminal Code, which reads:

s. 21. (1) Everyone is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[102] Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement (Dunlop and Sylvester v. The Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 896). The concepts of aiding and abetting are distinct. Aiding means to assist or help the principal offender, and abetting includes encouraging, instigating, promoting, or procuring the crime to be committed. Although the concepts are not the same, either activity constitutes a sufficient basis of liability (R. v. Meston (1975), 1975 CanLII 1449 (ON CA), 28 C.C.C. (2d) 497 (Ont. C.A.).

[103] However, mere presence at the scene is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away; or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit (Dunlop, at p. 891). The mens rea for aiding, under s. 21(1)(b)), is reflected in “for the purpose of” and is synonymous with intention. The Crown must prove that the accused intended to assist the principal in the commission of the offence (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411). The mens rea of abetting is the intention to encourage the actor in commission of the offence. Although s. 21(1)(c) does not provide that the words or actions must be for the purpose of abetting the person nevertheless the Crown must prove that the accused intended that the words or acts would encourage the actor (R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 38).

[104] In this case, the Crown argued that there was evidence that before and while the crime was being committed by Ms. Loyer, Mr. Case rendered aid, assistance, or encouragement to Ms. Loyer to sexually assault the complainant. Rather than mere presence, the evidence veers more towards Mr. Case’s facilitating the commission of the offense and providing encouragement during it.

[105] In respect of Mr. Case’s involvement in the sexual assault, I find as follows:

• Mr. Case issued the invitation to dinner at his residence. The complainant does not remember much if any direct communication with Ms. Loyer throughout the three times when they were together. She testified that Mr. Case spoke for Ms. Loyer when they were together, and that Ms. Loyer was mostly silent.

• Mr. Case picked up the complainant around 7:00 p.m. and drove her to his residence in a rented car. Ms. Loyer did not live at that residence. She resided with her parents in another part of town.

• The complainant was the only guest at dinner with the two defendants.

• It was known that the complainant would be alone, her partner was working that evening.

• After dinner, Mr. Case went to another room to pour a shot for J.S.T. He offered the shot and J.S.T. drank it, immediately after which her condition deteriorated, and she lost consciousness for some period.

• In the flashback, J.S.T. recalled Mr. Case sitting by her head, while she was prone on the floor and Ms. Loyer was sexually assaulting her.

• While Ms. Loyer was digitally penetrating J.S.T., Mr. Case remarked: “She just squirted everywhere. Do it again.”

• The entire evening was spent in Mr. Case’s residence in his presence.

• Mr. Case delivered the complainant home in his car sometime after midnight.

• Mr. Case tried to manipulate J.S.T.’s memory after the event providing a scenario which would exculpate the defendants.

[106] In the case at bar, Mr. Case was not merely present. The factual findings above lead only to one inference: that Mr. Case arranged and provided the place and opportunity for the sexual assault. By his actions, there is one obvious conclusion when Mr. Case delivered J.S.T. to his living room, he was intending to facilitate and provide the opportunity for the sexual assault in a space he controlled. When he sat beside J.S.T.’s head during the actual assault, he voiced approval and encouragement.

[107] Counsel for Mr. Case argued in the alternative, that there is no evidence that Ms. Loyer, as the principal, did anything after Mr. Case’s words of encouragement. Counsel for Mr. Case relied on R. v. Grewal, 2019 ONCA 630, at paras. 32-34, for the proposition that where there is no evidence that the offense continued after the encouragement, the offense of aiding and abetting is not made out.

[108] This argument is, if we accept the evidence of the complainant, that at best the involvement of Mr. Case is that he said two distinct things: one was an observation and one was a direction or an encouragement. Counsel submits that there is no evidence that Ms. Loyer did anything further after this direction; that is, there is no evidence that there was further assaultive conduct or any conduct whatsoever.

[109] However, even if the facts could be construed to have occurred in a sequential fashion— that the assault occurred and then the words were spoken—this fact in and of itself does not relieve Mr. Case of liability given all the other circumstances. I accept from the complainant’s account that the assault and the words were happening at the same time. The encouragement of David Case need not be timed exactly with the offence. It is sufficient if it forms part of a continuous sequence of events forming a single transaction. (R. v. Paré [1997] 2 S.C.R. 618).

[110] A micro-second difference in time, if there is one, between the encouragement and the actual assault are of no moment. The words spoken by Mr. Case in his observation of J.S.T.’s physical reaction, could also be seen as encouragement. In any event, they certainly do not point to Mr. Case’s presence as accidental or coincidental.

[111] In Grewel, the Court of Appeal for Ontario quotes, at para. 30, with approval the following excerpt from R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449:

In Dooley, at paras. 121-123, Doherty J.A. rejected the argument that there must be a causative link between the act of aiding or abetting and the perpetrator’s commission of the offence. Instead, he observed that “the authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence”, such that “any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists, encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime”: at para. 123. Actual assistance—not “but for” causation was required to found criminal liability as an aider, and this is what the trial judge told the jury.

[112] Other than an attempt by Mr. Case to sell some high-risk securities to J.S.T, the parties had no prior relationship with J.S.T. Mr. Case set up the evening and took all the steps to place J.S.T. where she was isolated from help or from witnesses. He was actively encouraging Ms. Loyer during the actual assault and positioned himself as close as he could to J.S.T.’s body during the assault. It defies logic that Mr. Case’s presence was as some sort of innocent spectator. He was not merely observing the assault. Mr. Case facilitated the incident from beginning to end.

[113] I find that Mr. Case’s many actions, as noted above, were for the purpose of facilitating, encouraging, and assisting Ms. Loyer in sexually assaulting J.S.T.

Conclusion

[114] I find on all of the evidence that I am satisfied beyond a reasonable doubt that Ms. Loyer is guilty of sexually assaulting J.S.T. and that, by aiding and abetting Ms. Loyer, Mr. Case is also guilty of sexually assaulting J.S.T.

[115] There shall be a conviction against David Case and Celine Loyer on Court #3 on the Indictment dated May 25, 2019.

The Honourable Madam Justice Patricia C. Hennessy

Released: March 5, 2020

DATE: 2020-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

David Case and Celine Loyer

Accused

REASONS FOR JUDGMENT

HENNSSY, J.

Released: March 5, 2020

[^1]: Oxford University Press, sub verbo “reliable” (25 February 2020), online: Lexico.com http://www.lexico.com/en/definition/reliable.

[^2]: Merriam-Webster, sub verbo “flashback” (25 February 2020), online: Merriam Webster.com dictionary <www.merriam-webster.com/dictionary/flashback>.

[^3]: Oxford University Press, sub verbo “flashback” (25 February 2020), online: Lexico.com <www.lexico.com/en/definition/flashback>.